Introduction: Matter of Ding, 27 I&N Dec. 295 (BIA 2018)

On May 21, 2018, the Board of Immigration Appeals (BIA) issued a published decision in the Matter of Ding, 27 I&N Dec. 295 (BIA 2018) [PDF version]. The case dealt with the term “prostitution” as it appears in the aggravated felony provision found in section 101(a)(43)(K)(i) of the Immigration and Nationality Act (INA). Section 101(a)(43)(K)(i) defines as an aggravated felony “an offense that relates to the owning, controlling, managing, or supervising of a prostitution business.” In Matter of Ding, the Board held that 101(a)(43)(K)(i) “is not limited to offenses involving sexual intercourse but is defined as engaging in, or agreeing or offering to engage in, sexual conduct for anything of value.” Accordingly, Matter of Ding represents an important precedent going forward on the scope of the aggravated felony provision in section 101(a)(43)(K)(i).

Regarding the instant situation in Matter of Ding, the Board concluded, based on its reading of the aggravated felony provision, that “[t]he offense of keeping a place of prostitution in violation of section 944.34(1) of the Wisconsin Statutes is categorically an aggravated felony under section 101(a)(43)(K)(i) of the [INA].”

In this article, we will examine the factual and procedural history of Matter of Ding and, subsequently, the Board’s analysis and conclusions and what these conclusions mean going forward. Notably, one of the three Board members on the panel dissented from the majority decision. We will also discuss the dissenting opinion in brief.

To see our ever-growing selection of dedicated articles on BIA, Attorney General, and Administrative Appeals Office (AAO) precedent decisions, please see our comprehensive article index [see index].

Factual and Procedural History and Relevant Statutes: 27 I&N Dec. at 295-96

The respondent, a native and citizen of the People’s Republic of China, became a lawful permanent resident (LPR) of the United States in December of 2010.

In 2017, the respondent was convicted of violating section 944.34(1) of the Wisconsin Statutes, “which provides that ‘[w]hoever intentionally … [k]eeps a place of prostitution’ is guilty of a felony.” “A place of prostitution” under Wisconsin law is defined in section 939.22(24) of the Wisconsin Statutes as “any place where a person habitually engages, in public or in private, in nonmarital acts of sexual intercourse, sexual gratification involving the sex organ of one person and the mouth or anus of another, masturbation or sexual contact for anything of value.”

The Department of Homeland Security (DHS) initiated removal proceedings by charging that the respondent was removable under section 237(a)(2)(A)(iii) of the INA [see section] as an alien who was convicted of an aggravated felony. Specifically, the DHS charged that the respondent’s Wisconsin conviction was an aggravated felony offense under section 101(a)(43)(K)(i) (see introduction for statutory language).

On July 27, 2017, the Immigration Judge presiding over the case determined that the respondent was not removable and dismissed the proceedings. The Board set forth the basis for the Immigration Judge’s decision.

First, the Immigration Judge relied upon the Board’s decision in Matter of Gonzalez-Zoquiapan, 24 I&N Dec. 549, 553 (BIA 2008) [PDF version], which defined the term “prostitution” in the context of the inadmissibility provision in section 212(a)(2)(D)(ii). Section 212(a)(2)(D)(ii) reads as follows: “Any alien who … directly or indirectly procures or attempts to procure, or (within 10 years of the date of application for a visa, admission, or adjustment of status) procured or attempted to procure or to import, prostitutes or persons for the purpose of prostitution, or receives or (within such 10-year period) received, in whole or in part, the proceeds of prostitution … is inadmissible.” The Matter of Gonzalez-Zoquiapan Board defined “prostitution” in the context of that specific provision: “The term ‘prostitution” means engaging in promiscuous sexual intercourse for hire.” (Also quoting 22 C.F.R. 40.24(b) (2006)). In a footnote to the instant decision, the Board explained that its holding in Matter of Gonzalez-Zoquiapan did not cover acts of soliciting prostitution on one’s own behalf.

In the instant proceedings, the Immigration Judge applied the definition of “prostitution” employed by the Board in Matter of Gonzalez-Zoquiapan for section 212(a)(2)(D)(ii) to its appearance in section 101(a)(43)(K)(i). In so doing, the Immigration Judge concluded that section 101(a)(43)(K)(i) only covered statutes that limited the definition of “prostitution” to acts involving “sexual intercourse.” Thus, the Wisconsin statute of conviction, which covered acts beyond sexual intercourse, was categorically overbroad relative to the Immigration Judge’s interpretation of section 101(a)(43)(K)(i) (i.e., the Immigration Judge concluded that the Wisconsin statute of conviction covered both conduct that fell within the scope of section 101(a)(43)(K)(i) and outside the scope of that provision).

The instant case arose in the jurisdiction of the United States Court of Appeals for the Seventh Circuit, meaning that the Board and Immigration Judges would only be bound by precedents from that Circuit or the Supreme Court of the United States. However, the Immigration Judge noted that in a separate case, the United States Court of Appeals for the Second Circuit had interpreted section 101(a)(43)(K)(i) similarly to him. In Prus v. Holder, 660 F.3d 144, 147 (2d Cir. 2011) (per curiam) [PDF version], the Second Circuit concluded that the offense of promoting prostitution under New York law was not an aggravated felony under section 101(a)(43)(K)(i) because the New York statute “encompasses accepting payment for sexual acts beyond the ‘sexual intercourse’ that is the exclusive subject of the immigration-law definition.” The Board noted that the United States Court of Appeals for the Ninth Circuit reached a similar result with regard to a similarly constructed Hawaii statute in its unpublished (non-precedential) decision in Depasquale v. Gonzales, 196 F.App’x 580, 582 (9th Cir. 2006).

The DHS appealed from the Immigration Judge’s decision. For the reasons that we will examine in the forthcoming sections, a 2-1 majority of the Board ruled in favor of the DHS, sustaining its appeal.

Analysis and Conclusions Regarding Section 101(a)(43)(K)(i): 27 I&N Dec. at 296-99

The Board began by explaining that it would employ the “categorical approach” to determine whether the respondent’s offense was an aggravated felony under section 101(a)(43)(K)(i). The categorical approach was first articulated by the Supreme Court of the United States in Taylor v. United states, 495 U.S. 575 (1990) [PDF version]. In applying the categorical approach, the Board would “compare the elements of the respondent’s State statute of conviction to the Federal generic definition of an offense that relates to owning, controlling, managing, or supervising of a prostitution business in section 101(a)(43)(K)(i)…” In other words, the Board’s inquiry focused on comparing the language of the respondent’s statute of conviction to the Federal generic offense set forth in section 101(a)(43)(K)(i) instead of looking beyond the respondent’s conviction to assess her specific conduct. To learn more about how the categorical approach is applied in immigration law, please see our collection of articles on different approaches that it encompasses [see index].

Section 101(a)(43)(K)(i) was added to the INA by section 222(a) of the Immigration and Nationality Corrections Act of 1994. Accordingly, the DHS undertook a survey of State statutes on prostitution that were in effect when section 101(a)(43)(K)(i) was added to the INA in 1994. From this survey, the DHS noted that only a few States limited the definition of prostitution to acts involving sexual intercourse in 1994. The Board reached the same conclusion after undertaking its own independent survey. The Board explained that the majority of States in 1994 “employed a broad definition of prostitution that included broad terms such as performing or offering to perform sexual ‘acts,’ ‘activity,’ conduct,’ or ‘contacts’ for something of value.” The Board further explained that “[t]he remaining States defined acts of prostitution with a combination of such general terms and more specific ones, including ‘touching,’ ‘fondling,’ ‘masturbation,’ and ‘sodomy,’ as well as ‘fornication,’ ‘penetration,’ and ‘intercourse.’” For a full list of State statute citations, please see the instant decision at 27 I&N Dec. at 297 n.4-7. In effect, this means that under the Immigration Judge’s narrow reading of section 101(a)(43)(K)(i), only convictions from a small number of States under the laws in effect in 1994 would have qualified as predicate offenses under section 101(a)(43)(K)(i).

The DHS argued additionally that, in 2017, only three states had limited the definition of prostitution to acts involving sexual intercourse. However, the Board explained that it was constrained to define offenses based on the “generic, contemporary meaning” of the statutory terms at the time the statute was enacted. Matter of Sanchez-Lopez, 27 I&N Dec. 256, 260-61 (BIA 2018) [PDF version] [see article].

In immigration court proceedings, the Immigration Judge had acknowledged the DHS’s survey and agreed with its position that a conviction under most State statutes in effect in both 1994 and 2017 could not serve as a predicate for removal under section 101(a)(43)(K)(i) under his narrow definition. Nevertheless, the Immigration Judge concluded that he was bound by the Board’s definition of “prostitution” from Matter of Gonzales-Zoquiapan.

However, the majority in the instant case disagreed with the Immigration Judge’s conclusion, taking the position that “the term ‘prostitution’ in section 101(a)(43)(K)(i) does not necessarily have the same meaning as it does in the inadmissibility provision at section 212(a)(2)(D).” In support of this proposition, the Board cited to the decision of the Supreme Court in Atlantic Cleaners & Dyers v. United States, 286 U.S. 427, 433 (1932) [PDF version], wherein the Court stated that “[i]t is not unusual for the same word to be used with different meanings in the same act, and there is no rule of statutory construction which precludes the courts from giving to the word the meaning which the Legislature intended it should have in each instance.” The Court cited to this proposition from Atlantic Cleaners & Dyers in Evntl. Def. v. Duke Energy Corp., 549 U.S. 561, 574 (2007) [PDF version].

The Board suggested that Congress may have intended to define “prostitution” more narrowly in section 212(a)(2)(D) than in section 101(a)(43)(K)(i). To this effect, the Board compared the statutory language. Section 212(a)(2)(D) covers aliens “coming to the United States who engage in prostitution, or who procure or import prostitutes…” (Board’s summary.) However, section 101(a)(43)(K)(i) utilizes broader language, covering aliens who are convicted of “an offense that … relates to” the operation of “a prostitution business.” In further support of its position, the Board noted that the original immigration statutes addressing the importation of women for “prostitution” were promulgated in 1875, whereas the specific aggravated felony provision at issue in the instant case was promulgated in 1994. The Board suggested that “the term’s meaning has likely changed over time to include conduct beyond sexual intercourse.”

Referring back to the point that the Immigration Judge’s narrow reading of section 101(a)(43)(K)(i) would have the effect of effectively nullifying the provision save for convictions in a small number of states, the Board explained that statutes should not be read in such a manner. In Esquivel-Quintana v. Sessions, 137 S.Ct. 1562, 1571 (2017) [PDF version] [see article], the Supreme Court declined to read a term in section 101(a)(43)(A) in a manner that “would come close to nullifying that term’s effect in the statute” by “categorically exclud[ing] the … laws of most States.” The Board itself hewed closely to the Supreme Court’s methodology and reasoning from Esquivel-Quintana in its published decision in Matter of Keeley, 27 I&N Dec. 146, 153 n.8 (BIA 2017) [PDF version] [see article], where it dealt with a separate term also in section 101(a)(43)(A).

The Board then addressed the decisions of the Second and Ninth Circuits in Prus and Depasquale, respectively, that reached the same result as the Immigration Judge. Here, the Board concluded that there was “no indication … that the Second and Ninth Circuits were presented with evidence that their interpretation of section 101(a)(43)(K)(i) would narrowly confine the applicability of that provision to a few jurisdictions.” However, unlike the Second and Ninth Circuits, the Board noted that the Immigration Judge did have and assess this evidence before “apply[ing] the general maxim of statutory construction that identical words used in different parts of the statute are presumed to have the same meaning.” On this point, the Board concluded that the Immigration Judge erred.

The Board held that “for purposes of section 101(a)(43)(K)(i) … we now now hold that the term ‘prostitution’ is not limited to offenses involving sexual intercourse but is defined as engaging in, or agreeing or offering to engage in, sexual conduct for anything of value.” The Board noted that this definition was also consistent with the definition from Black’s Law Dictionary 1222 (6th ed. 1990).

Analysis and Conclusions Regarding Respondent’s Conviction: 27 I&N Dec. at 299

Having now defined section 101(a)(43)(K)(i), the Board moved to assess whether the respondent’s conviction fell under the purview of the statute. The Board explained that section 101(a)(43)(K)(i) “does not proscribe merely engaging in prostitution.” The Board continued: “Rather, it reaches offenses of a commercial nature that ‘relate[] to the owning, controlling, managing, or supervising of a prostitution business.’” Based on the statutory language, the Board concluded that “it cannot reasonably be argued that the concept of ‘keeping’ a place of prostitution, as required by the elements of section 944.34(1) of the Wisconsin Statutes, falls outside the scope of section 101(a)(43)(K)(i).” Here, the Board cited to the decision of the Seventh Circuit in Familia Rosario v. Holder, 655 F.3d 739, 748 (7th Cir. 2011) [PDF version], wherein the Seventh Circuit held that a criminal conviction under section 278 of the INA for “importation into the United States of any alien for the purpose of prostitution” is not categorically an aggravated felony under section 101(a)(43)(K)(i) because section 278 “includes conduct that might have nothing to do with ownership, control, management or supervision of a business.” The Board distinguished the Wisconsin statute in the instant case, which by its terms necessarily involved the “ownership, control, management or supervision of a business.”

The Board also rejected the respondent’s argument that the Board’s conclusion was inapplicable to her due to the principles of retroactivity. Here, the Board stated that at the time the respondent committed her offenses, neither the Board nor the Seventh Circuit — under whose jurisdiction the instant proceedings arose — had held that her offense was not an aggravated felony under section 101(a)(43)(K)(i). Thus, the application of the correct definition in her case was not retroactive.

Question Left Open for Future Cases: 27 I&N Dec. at 300 n.10

The Board majority in a key footnote left open a crucial question for another day. Here, the Board noted that the respondent did not argue that the Wisconsin statute of conviction reached conduct beyond “prostitution” in section 101(a)(43)(K)(i) under the Board’s reading of the provision where “prostitution” was not limited to acts involving sexual intercourse. However, the Board declined to set the “[p]recise contours of the concept of ‘sexual conduct’” in the instant case, leaving the question open “for a case in which an alien argues that his or her offense does not fall within the phrase.”

Conclusion of Board Opinion: 27 I&N Dec. at 300

For the foregoing reasons, the Board held that section 101(a)(43)(K)(i) “is not limited to offenses involving sexual intercourse for hire.” Instead, the Board found that “it encompasses offenses relating to the operation of a business that involves engaging in, or agreeing or offering to engage in, sexual conduct for anything of value.” For these reasons, the Board concluded that the respondent’s conviction in violation of section 944.34(1) of the Wisconsin Statutes was categorically for an aggravated felony under section 101(a)(43)(K)(i).

In accordance with its conclusion, the Board sustained the DHS’s appeal, reinstated removal proceedings, and remanded the record to the Immigration Judge for further consideration of any reluef for which the respondent may be eligible.

Dissenting Opinion of Board Member Patricia A. Cole: 27 I&N Dec. at 300-302

Board Member Patricia A. Cole wrote a dissenting opinion. Although her opinion is not controlling, it is worth consideration both on its own merits and because it may be taken as instructive by Federal courts reviewing the issue in subsequent cases.

The dissent found fault with the majority decision for several reasons.

First, the dissent took the position that the majority’s reading of section 101(a)(43)(K)(i) — described as a “newly crafted definition” — was overbroad. Here, the dissent noted that the majority, in crafting its new definition, declined to address the specific contours of the term “sexual conduct.”

Second, the dissent criticized the majority for not providing sufficient analysis to support the new definition. Board Member Cole took the position that the majority’s reliance on a single dictionary definition was unavailing, and that other dictionaries define “prostitution” as being limited to conduct involving sexual intercourse. While she noted that the majority included a survey of State statutes in effect in 1994, she faulted it for not providing further analysis.

Third, mostly following from the second objection, the dissent criticized the majority for not discussing “the ramifications of its new definition of prostitution for section 101(a)(43)(K)(ii) of the [INA], which references the [criminal] provisions of 18 U.S.C. [sections] 2421, 2422, and 2423 (2012), which relate to engaging in ‘prostitution, or in any sexual activity.’” This point will be worth watching in subsequent cases that apply the holding of majority decision in the instant case.

Fourth, the dissent took the position that the Immigration Judge correctly applied the canon of statutory interpretation that “the presumption that identical words used in different parts of the same statute should carry the same meaning.” Here, she noted that the Seventh Circuit applied this canon in White v. Scibana, 390 F.3d 997, 1002 (7th Cir. 2004) [PDF version], thus taking the position that the Board’s conclusion was contrary to controlling Seventh Circuit precedent. She noted that the Second and Ninth Circuits also appealed to this canon in following the Board’s definition from Matter of Gonzales-Zoquiapan in Prius and Depasquale respectively.

Fifth, the dissent noted that while the majority looked to a survey of State laws in effect in 1994 when section 101(a)(43)(K)(i) was enacted, it had not undertaken any similar analysis in Matter of Gonzales-Zoquiapan. While the dissent agreed with the DHS that the narrow definition of “prostitution” from Matter of Gonzales-Zoquiapan “is quite limited in the aggravated felony context,” she did not lend support to “the majority’s overly broad definition for the term based on a supposition that Congress ‘may have intended’ a different meaning in section 101(a)(43)(K).’”

Sixth, the dissent noted that Congress has in fact changed the definition of “prostitution” over time, but that these changes in fact supported the Immigration Judge’s conclusion. For example, former section 212(a)(12), which preceded section 212(a)(2)(D) (1988), had “rendered excludable ‘aliens who directly or indirectly procure … prostitutes or persons for the purpose of prostitution or for any other immoral purpose.” However, in the Immigration Act of 1990, Congress removed the “any other immoral purpose” language. The dissent stated that this supported the Immigration Judge’s reading of section 101(a)(43)(K)(i).

Seventh and finally, the dissent took the position that section 101(a)(43)(K)(i) should be interpreted similarly to section 212(a)(2)(D)(iii), “which covers aliens ‘coming to the United States to engage in any other unlawful commercialized vice, whether or not related to prostitution.”

The dissent urged that Congress should address the definition of “prostitution” and broaden it. However, it stated that, as the statutes are written now, “neither the legislative history of the term [‘prostitution’] nor the aggravated felony ground in section 101(a)(43)(K)(i) supports the majority’s new definition.”

Conclusion

In Matter of Ding, the Board untethered the definition of the term “prostitution” in the section 101(a)(43)(K)(i) context from its definition of the term in the separate section 212(a)(2)(D) context. In so doing, the Board adopted a far more expansive view of section 101(a)(43)(K)(i) than had the Second Circuit in a precedent decision and the Ninth Circuit in an unpublished decision. The Board’s decision leaves several questions open, however, such as the parameters of the term “sexual conduct.”

The dissenting opinion is worth review in light of the fact that the issue will be litigated further. It is not impossible that courts may decline to defer to the Board’s definition in Matter of Ding or will otherwise be troubled by the Board’s separate and distinct definitions of the term “prostitution” in section 101(a)(43)(K)(i) and section 212(a)(2)(D). This issue will be especially worth watching in the Second Circuit — which covers New York, Connecticut, and Vermont — because it is the only circuit with precedent that explicitly conflicts with the Board’s new decision.

The case highlights the complexities that often come with determining whether a State criminal conviction falls under a Federal immigration provision. An alien facing criminal charges should obtain a consultation from an experienced immigration attorney on the possible immigration consequences of different case outcomes. An alien charged with removability should always consult with an experienced immigration attorney throughout the entire process for individualized representation based on case-specific facts and circumstances.