Prostitution, What It Means, and How It Can Impact Your Immigration Status

Defining Prostitution Under P.C. § 647(b)

• P.C. § 647(b) is a California law which states that it is a misdemeanor for anyone 18 or older who engages in prostitution or solicitation.
• The following activities qualify as prostitution or solicitation:
  • Payment or acceptance of money or other consideration in exchange for a sexual act (“prostitution”),
  • Offer to engage in an act of prostitution ("solicitation"), or
  • Agreement to engage in an act of prostitution.
• Although solicitation or prostitution falls within the same penal code, they have completely different outcomes under immigration law.

Section 212(a)(2)(D)(ii): Inadmissible Aliens

Section 212(a)(2)(D)(ii) is a crucial federal law that states any alien (individuals who are not naturalized in the United States) who come to the United States solely, principally, or incidentally to engage in prostitution, or has engaged in prostitution within 10 years of the date of application for a visa, admission, or adjustment of status are inadmissible.

• Section 212(a)(2)(D)(ii) provides, in pertinent part:
  • (D) Prostitution and commercialized vice
  • Any alien who
    • (i) is coming to the United States solely, principally, or incidentally to engage in prostitution, or has engaged in prostitution within 10 years of the date of application for a visa, admission, or adjustment of status,
    • (ii) 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, or
    • (iii) is coming to the United States to engage in any other unlawful commercialized vice, whether or not related to prostitution, is inadmissible.

Potential Immigration Consequences of Prostitution

There is a range of immigration consequences depending on the type of offense involving sexual or lewd intent. First, for immigration purposes, the definition of prostitution is restricted to only the offerance of sexual intercourse, as opposed to other sexual conduct, for a fee. For prostitution, a person is inadmissible for prostitution if he or she engages in offering sexual intercourse, but not other lewd conduct, for a fee. Thus, a conviction under P.C. § 647(b) alone does not establish this conduct because it requires only lewd conduct.

Prostitution As A CIMT: What Does This Mean?

P.C. § 647(b) conviction is a crime involving moral turpitude (CIMT). For immigration purposes, regardless of whether intercourse or mere lewd acts are offered for a fee, prostitution is a CIMT for both the prostitute and the customer.

In the Ninth Circuit Court decision, Rohit v. Holder, the Court held that all conduct under P.C. § 647(b) is a CIMT. However, please keep in mind that some immigrants are eligible for a discretionary waiver of the prostitution and moral turpitude inadmissibility grounds under 8 USC § 1182(h).

Aggravated Felony

Certain convictions relating to running a prostitution business come within the prostitution deportation grounds or aggravated felony as well.Fortunately, as the federal definition of prostitution is restricted to only providing sexual intercourse for a fee, while Cal. P.C. § 315, states that keeping or residing in a place of prostitution or lewdness is a CIMT, includes providing other sexual conduct for a fee, § 315 is either not an aggravated felony or should be divisible.

INA 212(h) Waiver:

Section 212(h) provides an important discretionary waiver for several crime-related inadmissibility grounds. One of such crimes that INA § 212(h) waives the inadmissibility grounds for is crimes relating to the act of engaging in prostitution.

• To qualify under INA 212(h), an applicant must be:
  • A spouse, parent, son or daughter of a U.S. citizen or permanent resident who will face extreme hardship if the applicant is removed;
  • Inadmissible only under the prostitution ground; or
  • Inadmissible based upon a conviction or event that took place more than 15 years before the current application.

Under the last two categories of inadmissibility under the prostitution ground and based upon a conviction or event that took place more than 15 years before the current applicant, the applicant must prove that he/she is rehabilitated and his/her admission is not contrary to U.S. interests.

Therefore, if you have been convicted for prostitution, an I-601 waiver specifically to waive prostitution can be filed without showing a hardship to a qualifying relative if:

• At least 15 years have passed since the activity or event that made you inadmissible;
• You can prove that you have been rehabilitated, and
• That your admission to the United States would not endanger the national welfare, safety, or security of the United States.