Under US immigration law, a person involved in prostitution is deemed inadmissible under INA 212(a)(2)(D)(i). Inadmissibility is an immigration concept which means the person is prevented from being “lawfully admitted” into the United States. For the purpose of this blog, inadmissibility relates to barriers someone will face when trying to become a permanent resident of the United States.
Understanding Inadmissibility
The Immigration and Nationality Act (INA) does not provide a single definition of "inadmissibility." Instead, it outlines various reasons why someone might be considered inadmissible in Section 212 of the INA. These reasons fall under broad categories like health, criminal activity, national security, and unlawful presence. Prostitution is considered a ground of inadmissibility, and a prior conviction related to prostitution can be problematic.
Prostitution Ground of Inadmissibility
The INA identifies prostitutes as persons who have engaged in or sought to engage in prostitution, while also identifying those who seek to procure prostitutes, within the past 10 years, as inadmissible persons. Interestingly, engaging in prostitution does not apply to a “john” or someone who hired a prostitute, but only the prostitute. See INA §§ 212(a)(2)(D)(i)–(ii), 8 USC §1182(a)(2)(D)(i)–(ii); 22 CFR §40.24; 9 FAM 302.3-6(B)(1).
A person may be barred even if prostitution is legal in their country. But the everyday meaning of prostitute or prostitution does not necessarily apply to US immigration laws. Our law office has been successful in arguing the definition of prostitution under the INA. For example, the INA requires that for someone to be considered a “prostitute” they must engage in “a regular pattern of behavior or conduct.” See Matter of T, 6 I&N Dec. 474 (BIA 1955). Our office has also been successful in arguing that the INA’s definition of prostitution requires sexual intercourse, whereas state convictions under statutes that require less conduct, such as oral sex, would not trigger the prostitution ground of inadmissibility. For example, under ,Matter of Gonzalez-Zoquiapan, 24 I&N Dec. 549 (BIA 2008)), the BIA held that California Penal Code § 647(b) “disorderly conduct” relating to prostitution does not fall within INA §212(a)(2)(D)(ii) because it does not involve procuring prostitution for another.
Prostitution as a “Crime Involving Moral Turpitude”
A person may be deemed inadmissible on multiple immigration grounds. Even if we succeed in arguing that the prostitution ground of inadmissibility does not apply, a person can still be found inadmissible for being convicted of a “crime involving moral turpitude” (CIMT). The Board of Immigration Appeals (BIA) defines a CIMT as a crime that “refers generally to conduct which is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.… Moral turpitude has been defined as an act which is per se morally reprehensible and intrinsically wrong, or malum in se so it is the nature of the act itself and not the statutory prohibition of it which renders a crime one of moral turpitude.” Matter of Franklin, 20 I&N Dec. 867, 868 (BIA 1994)
To succeed on the second possible ground of inadmissibility, our office has been successful in arguing that the minimum conduct required to trigger criminal liability under the statute of conviction is not a CIMT. However, we counsel our clients with prior convictions related to prostitution that a I-601 Waiver of Ground of Inadmissibility may be needed. This waiver can “forgive” your ground of inadmissibility and allow you to obtain permanent residency in the United States despite the conviction.
Prostitution as an Aggravated Felony
Under US immigration law, any crime considered an aggravated felony carries severe consequences, including denial of almost all immigration benefits. Conviction of an aggravated felony can lead to deportation, removal, or inadmissibility to the United States.
Specifically as it relates to prostitution, an offense relating to the owning, controlling, managing, or supervising of a prostitution business is an aggravated felony. Matter of Ding, 27 I&N Dec. 295 (BIA 2018). If you have been convicted of more than simple prostitution, but instead, convicted of running a prostitution business, then your case is especially complex. In these scenarios, the penal code you were convicted under must be closely scrutinized to argue that the offense you were charged with is overbroad in that it encompasses more conduct than running a prostitution business. For example, in Prus v. Holder, 660 F.3d 144 (2d Cir. Sept. 28, 2011) the Court of Appeals held that a New York conviction for promoting prostitution in the third degree, under New York Penal Law 20.00 and 230.25, does not constitute an aggravated felony within the meaning of INA 101(a)(43)(K)(i), 8 U.S.C. 1101(a)(43)(K)(i), because New York law defines prostitution more broadly than the generic federal definition of this aggravated felony offense.
Consult an Experience Immigration Attorney
If you have a conviction that concerns you, it is important to speak with a skilled immigration attorney who understands the impact of criminal convictions on immigration. It is also important to hire a caring and compassionate attorney where you can openly speak about your history without fear of being judged. Contact our office today for a consultation.