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Defining Aggravated Felony and The Immigration Consequences: Removable or Not Removable


Oksana Nikolayevna Prus v. Eric Holder 2011 WL 4470540

Decided September 28, 2011

Issue: whether a conviction under NY Penal Law § 230.25(1) Promoting Prostitution in the Third Degree constitutes an aggravated felony under the Immigration and Nationality Act (INA) and therefore makes the defendant removable.

Holding: the New York State offense of promoting prostitution in the third degree does not constitute an aggravated felony because NY Penal Law § 230.25(1) punishes conduct that does not involve a prostitution business as the term prostitution is used in the INA and therefore the conviction does not constitute an aggravated felony.

Facts: The petitioner was convicted in New York for promoting prostitution in teh third degree.  The Board of Immigration Appeals found her removable, concluding that her offense constituted an aggravated felony under teh INA § 101(a)(43)(K)(i), 8 U.S.C. 1101(a)(43)(K)(i).

Legal Analysis: Federal Courts lack jurisdiction to consider a petition for review filed by an alien who is removable due to commission of an aggravated felony.  However, the 2d Circuit retained jurisdiction here because to reveiw whether an alien has, as a matter of law, committed such an aggravated felony.   Kamagate v. Ashcroft, 385 F.3d 144 (2d Cir. 2004).  The 2d Circuit reviewed the determination that a state conviction constitutes an aggravated felony de novo and employed the categrocal approach to determine whether the crim for which Prus was convicted constitutes an aggravated felony.

The 2d Circuit added that under either the categorical or modified categorical approach the outcome would be the same no matter which approach was used because the the record of conviction contained no facts beyond mere recitation of the criminal statute.

The 2d Circuit noted that if the criminal statute punishes conduct that falls outside the INA’s definition, then the crime does not constitute an aggravated felony.

Because “prostitution” is not defined in the INA, the normal rule of statutory construction that identical words used in different parts of teh same act are intended to have the same meaning, the same definition of prostitution shoudl be used to interpret INA § 101(a)(43)(K)(i).  Thus, prostitution refers to promiscuous sexual intercourse for hire.

Under New York Law a person is guilty of promoting prostitution in teh third degree when she knowingl advance or profits from prostitution bymanaging supervising, controllig or owning, either alone or in association with others a house of prostitution or a prostitution business. NY Penal Law §230.25.

In New York a person is guilty of prostitution when such person engages or agrees or offers to engage in sexual conduct with another person in return for a fee.

Although sexual conduct is not defined in Article 230, the plain language of the statute makes clear that prostitution in New York encompasses accepting payment for sexual acts beyond the sexual intercourse that is the exclusive subject of the immigration law definition.

The 2d Circuit found that there were no cases that limit the meaning of prostitution under New York law to the selling of sexual intercourse as it is defined for purposes of federal immigration law.  The term prostitution under New York law encompasses acts that fall outside the federal definition of that term.

The plain language of INA §101(a)(43)(K)(i) limits the statute’s reach to crimes associated with prostitution, not crimes associated with other proscribed conduct.  The term “relates to” only encompasses crimes involving conduct meeting the relevant definition of prostitution – not something merely like prostitution.

Accordingly, because NY Penal Law § 230.25 punishes conduct that does not involve a prostitution business as the term prostitution is used in the INA, the conviction does not constitute an aggravated felony and the defendant is not removable.