10-3433 Familia Rosario v. Holder

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Immigration
Removal; aggravated felonies

The portion of 8 U.S.C. § 1328, which prohibits the “importation into the United States of any alien for the purpose of prostitution,” is not categorically an “offense that relates to the owning, controlling, managing or supervising of a prostitution business,” and is therefore not an aggravated felony under INA § 101(a)(43)(K)(i); 8 U.S.C. § 1101(a)(43)(K)(i).

“While the plea agreement showed that Familia Rosario had knowledge of the object of the conspiracy and aided and abetted that conspiracy, it stretches the bounds of logic to suggest that his conduct, distributing condoms, was conduct that ‘related to’ the owning, controlling, managing or supervising of a prostitution business. The government itself agreed to a minor role reduction at sentencing, but now argues that Familia Rosario’s actions were ‘essential’ to the operation of the business, and thus ‘relate to’ the owning, controlling, managing or supervising of the businesses at issue. While condoms are mandatory for the operation of prostitution businesses in some jurisdictions, see, e.g., Nev. Admin. Code ch. 441A, § 805 (2003), and are certainly ‘essential’ in the sense that their use among commercial sex workers has proven to help stem the spread of HIV and other diseases, see, e.g., Sean C. Clark, Never In A Vacuum: Learning from the Thai Fight Against HIV, 13 Wm. & Mary J. Women & L. 593 (2007), we note that there was no regulation requiring their use in this case, and that the business of prostitution has historically been able to be managed, owned, controlled and supervised without such precautions.”

Vacated and Remanded.

10-3433 Familia Rosario v. Holder

Petition for Review of an Order of the Board of Immigration Appeals, Williams, J.

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