There are two potential provisions of law that DHS (Department of Homeland Security) use to deport non – United States citizens for prostitution convictions. The first is by claiming that it is a “crime involving moral turpitude.” The second, which is much more severe, is that it is an “aggravated felony.” The Board of Immigration Appeals recently decided whether a Wisconsin prostitution statute serves as the basis of an aggravated felony.
When is a prostitution conviction a “crime involving moral turpitude?”
Unfortunately, there is no defined list that shows which state statutes are considered crimes involving moral turpitude. When a person is convicted of a crime, DHS can place that person in deportation proceedings and allege that the conviction is a crime involving moral turpitude. It would then be up to the immigration judge to decide whether the conviction is a crime involving moral turpitude. Moral turpitude has been explained to be conduct that is inherently dishonest, base, vile, or depraved and contrary to the accepted rules of morality and the duties owed between persons or to society in general. If either party doesn’t like the immigration judge’s decision, they can appeal to the Board of Immigration Appeals and then to the Federal Circuit Court. Those appellate decisions give us specific guidance on a few specific statutes and general guidance on other statutes.
The Eighth Circuit determined that Minnesota’s solicitation of prostitution statute qualifies as a crime involving moral turpitude. Gomez-Gutierrez v. Lynch, 811 F.3d 1053 (2016). Likewise, the Ninth Circuit held that all conduct under California’s prostitution statute qualifies as a crime involving moral turpitude. Rohit v. Holder, 670 F.3d 1085 (9th Cir. 2012).
So, any plea to a prostitution offense could be determined to be a crime involving moral turpitude and thus could have devastating immigration consequences.
When is a prostitution conviction an “aggravated felony?”
The Board of Immigration Appeals recently decided whether a conviction under a Wisconsin prostitution statute served as an aggravated felony. In Matter of Ding, 27 I&N Dec. 295 (BIA 2018), Shuying Ding, a lawful permanent resident who was a citizen of China was charged with violating Wisconsin statute §944.34(1), which makes it a crime to keep a place of prostitution. “A place of prostitution” is defined 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.”
Section 101(a)(43)(K)(i) of the Immigration and Nationality Act makes an offense that “relates to the owning, controlling, managing, or supervising of a prostitution business” an aggravated felony. An aggravated felony makes a non-citizen deportable with almost no form of relief available.
So the question becomes, does a conviction under Wisconsin’s statute criminalizing keeping a place of prostitution satisfy Section 101(a)(43)(K)(i)? The immigration judge said, “No.” The judge’s logic was that the Wisconsin statute was too broad and encompassed conduct, specifically acts that do not require sexual intercourse, while Section 101(a)(43)(K)(i) does require sexual intercourse.
The BIA disagreed and decided that a person can be convicted of an aggravated felony under Section 101(a)(43)(K)(i) even when there is no sexual intercourse.
So, what does this mean for a person convicted of a prostitution charge in Florida?
Florida has several prostitution related laws on the books. Let’s take a look at a few of the more common offenses and the potential immigration consequences.
Fla. Stat. §796.07(2)(e) is Florida’s base prostitution statute. It makes it a crime to “offer to commit, commit, or engage in prostitution, lewdness, or assignation.” Prostitution is defined as giving or receiving of the body for sexual activity for hire but excludes sexual activity between spouses. A conviction under this statute is likely a crime involving moral turpitude.
Fla. Stat. §796.07(2)(f) is Florida’s “John” statute, known as solicitation of prostitution. This statute criminalizes soliciting, inducing, enticing or procuring another to commit prostitution, lewdness or assignation. A conviction under this statute is probably a crime involving moral turpitude.
Fla. Stat. §796.07 also defines other prostitution related crimes. For example, Fla. Stat. §796.07(2)(a), like the one in Wisconsin, makes it illegal to own, establish, maintain, or operate any place, structure, building or conveyance for the purpose of lewdness, assignation, or prostitution. This is most likely a crime involving moral turpitude, which is both a crime of deportability and a crime of inadmissibility. It also may be an aggravated felony, specifically in the wake of the Ding decision. Any non – United States citizen should not plead to this statute without conferring with both a criminal defense attorney and an immigration attorney, as it is likely to lead to deportation.
Jeremy Lasnetski is a partner at the Law Offices of Lasnetski Gihon Law. The firm focuses on criminal defense, immigration and personal injury. Mr. Lasnetski focuses his practice on immigration and criminal defense. Mr. Lasnetski is the former Jacksonville Regional Vice Chair of the American Immigration Lawyer’s Association, Central Florida Chapter and has represented clients in deportation proceedings, USCIS benefit cases, consular processing cases, and more. He routinely gives presentations on immigration law issues to both criminal and immigration lawyers at conferences and seminars throughout the State of Florida.