Alejandro Alarcon-Vega v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-13038
Non-Argument Calendar
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Agency No. A206-239-540
ALEJANDRO ALARCON-VEGA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(September 1, 2021)
Before JORDAN, BRANCH, and GRANT, Circuit Judges.
PER CURIAM:
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Alejandro Alarcon-Vega, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) decision affirming the
immigration judge’s (“IJ”) decision pretermitting his application for cancellation of
removal because the IJ determined that Alarcon-Vega’s prior Alabama conviction
for solicitation of prostitution constitutes a crime involving moral turpitude
(“CIMT”), thereby rendering him ineligible for cancellation of removal. On
appeal, Alarcon-Vega argues that his prior offense of conviction is not a CIMT
because Alabama’s law prohibiting the solicitation of prostitution encompasses
conduct in which there is no monetary transaction involved, which is not morally
turpitudinous conduct. After careful consideration, we dismiss in part and deny in
part the petition for review.1
I. Background
Alarcon-Vega entered the United States on an unknown date without being
admitted or paroled. As relevant to this appeal, on August 20, 2013, Alarcon-Vega
pleaded guilty in Alabama state court to soliciting prostitution, in violation of Ala.
1 Alarcon-Vega argues that the IJ also erred in determining that his prior Alabama
conviction for domestic violence in the third-degree qualified as a “crime of domestic violence”
under 8 U.S.C. § 1227(a)(2)(E)(i), which rendered him ineligible for cancellation of removal.
However, because the BIA did not reach this issue, we lack jurisdiction to review this claim. See
Martinez v. U.S. Att’y Gen., 446 F.3d 1219, 1221 n.2 (11th Cir. 2006) (explaining that when the
BIA does not address an IJ’s alternative holding, the alternative holding is not subject to review
by this Court). Accordingly, we dismiss this portion of Alarcon-Vega’s petition.
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Code § 13A-12-121(c). He was sentenced to 30 days’ imprisonment and 24
months of probation.
On July 28, 2015, the Department of Homeland Security (“DHS”) initiated
removal proceedings against Alarcon-Vega by issuing him a notice to appear
(“NTA”), charging him as removable under 8 U.S.C. § 1182(a)(6)(A)(i), as an
alien not admitted or paroled.2 Alarcon-Vega admitted to the charge of entering
the United States without inspection and applied for cancellation of removal under
8 U.S.C. § 1229b(b).3
At a master calendar hearing, DHS alerted the immigration court that
Alarcon-Vega had a conviction for solicitation of prostitution, in violation of Ala.
Code. § 13A-12-121(c),4 which it asserted qualified as a CIMT and rendered
2 The NTA also charged Alarcon-Vega with removability under 8 U.S.C.
§ 1182(a)(2)(A)(i)(I) for being an alien convicted of a CIMT, but the IJ declined to rule on that
allegation of removability.
3 The Attorney General may cancel the removal of an inadmissible or removable alien
and adjust the status of the alien to that of a lawful permanent resident if the alien:
(A) has been physically present in the United States for a continuous period of not
less than 10 years immediately preceding the date of such application;
(B) has been a person of good moral character during such period;
(C) has not been convicted of an offense under [8 U.S.C. §§ 1182(a)(2),
1227(a)(2), or 1227(a)(3)]; and
(D) establishes that removal would result in exceptional and extremely unusual
hardship to the alien’s spouse, parent, or child, who is a citizen of the United
States or an alien lawfully admitted for permanent residence.
8 U.S.C. § 1229b(b)(1).
4 At the time of Alarcon-Vega’s 2013 conviction, Alabama law provided that:
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Alarcon-Vega ineligible for cancellation of removal. The IJ indicated that he
would take the matter under advisement, and if he determined that Alarcon-Vega
had committed a CIMT, he would issue an order pretermitting the application for
cancellation of removal. Following the hearing, Alarcon-Vega’s counsel filed a
memorandum, arguing that because there was no precedent from this Circuit
indicating that solicitation of prostitution was a CIMT, Alarcon-Vega was eligible
for cancellation of removal (although he acknowledged that such precedent existed
in other circuits).
Thereafter, the IJ entered an order pretermitting and denying Alarcon-
Vega’s application for cancellation of removal on the ground that he was
statutorily ineligible because his Alabama conviction for soliciting prostitution
qualified as a CIMT. The IJ explained that, under 8 U.S.C. §§ 1182(a)(2) and
1229b(b)(1) an alien convicted of a CIMT is statutorily ineligible for cancellation
of removal, and in order to determine whether a prior offense was a CIMT, the
immigration court would apply the categorical approach and compare the elements
of the offense of conviction with “the elements of the generic definition of a
No person shall agree to engage in sexual intercourse, deviant sexual intercourse,
or sexual contact with another or participate in the act for monetary consideration
or other thing of marketable value and give or accept monetary consideration or
other thing of value in furtherance of the agreement.
Ala. Code § 13A-12-121(c) (2001). In 2019, the statute was amended and the term “sodomy”
was substituted for “deviant sexual intercourse.” Id. (2020).
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CIMT.” The IJ noted that historically the BIA viewed prostitution-related crimes
as involving moral turpitude, and that the Tenth, Sixth, and Ninth Circuits had held
that solicitation of prostitution was a CIMT. Therefore, the IJ found that Alarcon-
Vega’s Alabama conviction for solicitation of prostitution qualified as a CIMT and
rendered him statutorily ineligible for cancellation of removal. Accordingly, the IJ
denied the application and ordered Alarcon-Vega removed to Mexico.5
Alarcon-Vega, through counsel, appealed the IJ’s decision to the BIA,
arguing, in relevant part, that the IJ erred in determining that a conviction under
Alabama law for solicitation of prostitution was a disqualifying CIMT. He argued
for the first time that the Alabama statute criminalized consensual sexual
intercourse that did not involve a monetary transaction, and therefore his
conviction did not categorically qualify as a CIMT because the Alabama statute
was divisible and overly broad.
The BIA affirmed the IJ’s decision that Alarcon-Vega’s solicitation of
prostitution offense categorically qualified as a CIMT. It noted that both it and
several of our sister circuits had held that prostitution-related offenses were
CIMTs. Applying the categorical approach to Ala. Code § 13A-12-121(c), the
5 The IJ also determined that Alarcon-Vega was statutorily ineligible for cancellation of
removal because his Alabama domestic violence conviction was a disqualifying crime of
domestic violence under 8 U.S.C. § 1227(a)(2)(E)(i). Alarcon-Vega challenged this
determination in his subsequent appeal to the BIA, but the BIA concluded it did not need to
reach the issue because of its ruling concerning the solicitation of prostitution conviction.
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BIA rejected Alarcon-Vega’s argument that the statute criminalizes all sexual
activity in Alabama and instead concluded that it criminalized only sexual
engagements that involved a monetary transaction, which involved moral
turpitude. The BIA also held that, to the extent Alarcon-Vega argued that there
was a realistic probability that Alabama would apply § 13A-12-121(c) to conduct
that falls outside of the generic definition of a CIMT, his argument was
unpersuasive because he failed to identify any case in which Alabama had done so.
Accordingly, the BIA affirmed the denial of Alarcon-Vega’s application for
cancellation of removal on this ground. Alarcon-Vega now petitions this Court for
review.
II. Discussion
Alarcon-Vega argues that the IJ and the BIA erred in determining that his
Alabama conviction for solicitation of prostitution categorically qualified as a
CIMT that renders him statutorily ineligible for cancellation of removal. He
maintains that Ala. Code § 13A-12-121(c) criminalizes all sexual activity,
including such activity that does not involve a monetary transaction, and therefore,
punishes conduct that falls outside the definition of a CIMT.
“We review our subject-matter jurisdiction de novo.” Xiu Ying Wu v. U.S.
Att’y Gen., 712 F.3d 486, 492 (11th Cir. 2013). When, as here, an alien asks us to
review the denial of an application for cancellation of removal, we have
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jurisdiction to review only constitutional claims or questions of law. See 8 U.S.C.
§ 1252(a)(2)(B)(i), (D). Whether a prior offense of conviction qualifies as a CIMT
is a question of law that we review de novo, “subject to the principles of deference
articulated in Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837
(1984).” Pierre v. U.S. Att’y Gen., 879 F.3d 1241, 1249 (11th Cir. 2018); see also
Gelin v. U.S. Att’y Gen., 837 F.3d 1236, 1240 (11th Cir. 2016). We review only
the decision of the BIA, except to the extent that it adopts the IJ’s decision or
expressly agrees with the IJ’s reasoning. Gonzalez v. U.S. Att’y Gen., 820 F.3d
399, 403 (11th Cir. 2016).
An alien convicted of a CIMT is inadmissible and statutorily ineligible for
cancellation of removal. See 8 U.S.C. § 1229b(b)(1) (explaining that in order to be
eligible for cancellation of removal, the alien must show that he: (1) “has been
physically present in the United States for a continuous period of not less than 10
years immediately preceding the date of [an] application”; (2) “has been a person
of good moral character during [that] period”; (3) has not been convicted of certain
criminal offenses, including a CIMT under 8 U.S.C. § 1182(a)(2)(A)(i)(I); and
(4) “establishes that removal would result in exceptional and extremely unusual
hardship to [his] spouse, parent, or child, who is a citizen of the United States or an
alien lawfully admitted for permanent residence”). “Although the term ‘moral
turpitude’ is not defined by statute, [we] ha[ve] held that it involves an act of
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baseness, vileness, or depravity in the private and social duties which a man owes
to his fellow men, or to society in general, contrary to the accepted and customary
rule of right and duty between man and man.” Gelin, 837 F.3d at 1240 (quotation
omitted).
To determine whether a state offense is a CIMT, we apply the categorical
approach, looking “to the statutory definition of the crime rather than the
underlying facts of the conviction.” Cano v. U.S. Atty. Gen., 709 F.3d 1052, 1053
(11th Cir. 2013). Under the categorical approach, we ask “whether the least
culpable conduct necessary to sustain a conviction under the statute meets the
standard of a crime involving moral turpitude.” Id. at 1053 n.3 (quotation
omitted).
When Alarcon-Vega was convicted, the relevant statute provided as follows:
[n]o person shall agree to engage in sexual intercourse, deviant sexual
intercourse, or sexual contact with another or participate in the act for
monetary consideration or other thing of marketable value and give or
accept monetary consideration or other thing of value in furtherance
of the agreement.
Ala. Code § 13A-12-121(c). Thus, under a plain reading of the statute, the least
culpable conduct necessary to sustain a conviction under Ala. Code § 13A-12-
121(c) requires: (1) agreeing to engage in sexual contact with another; (2) for
monetary or other valuable consideration; and (3) giving or accepting the
agreed-upon consideration in furtherance of the agreement. We have no trouble
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concluding that agreeing to engage in sexual contact for consideration—monetary
or otherwise—“involves an act of baseness, vileness, or depravity in the private
and social duties which a man owes to his fellow men, or to society in general,
contrary to the accepted and customary rule of right and duty between man and
man.” Gelin, 837 F.3d at 1240; see also Cano, 709 F.3d at 1054 (characterizing a
CIMT as an offense involving “conduct that exhibits a disregard for the law” and
“a violation of the accepted rules of morality and the duties owed to society”
(alteration adopted) (quoting Matter of Danesh, 19 I. & N. Dec. 669, 671 (BIA
1988))). Accordingly, we hold that a conviction for violating § 13A-12-121(c)
categorically qualifies as a CMT.6
Furthermore, we note that our conclusion is consistent with that of other
circuits that have addressed similar statutes. See, e.g., Reyes v. Lynch, 835 F.3d
556, 558, 560 (6th Cir. 2016) (holding that an Ohio conviction for solicitation of
prostitution qualified as a CIMT because, “[i]f the BIA considers prostitution to be
a CIMT, there is no reason to consider the solicitation of prostitution to be
significantly less ‘base, vile, and depraved’ than the act of prostitution itself”
(quotation omitted)); Gomez-Gutierrez v. Lynch, 811 F.3d 1053, 1057–59 (8th Cir.
2016) (holding that a Minnesota conviction for soliciting prostitution categorically
6 Because we conclude that the least culpable conduct under the statute categorically
qualifies as a CIMT, we need not reach the issue of whether the statute is divisible. See Gelin,
837 F.3d at 1242.
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qualified as a CIMT); Rohit v. Holder, 670 F.3d 1085, 1087, 1089–90 (9th Cir.
2012) (holding that a California conviction for disorderly conduct involving
solicitation of prostitution categorically qualified as a CIMT because “soliciting an
act of prostitution is not significantly less ‘base, vile, and depraved’ than engaging
in an act of prostitution”).
Although Alarcon-Vega argues that § 13A-12-121(c) criminalizes
consensual sexual intercourse without any exchange of consideration, he has failed
to meet his burden of demonstrating that the “statute creates a crime outside the
categorical definition.” Pierre, 879 F.3d at 1252. In order to meet this burden,
Alarcon-Vega “must show a realistic probability, not a theoretical possibility, that
the State would apply its statute to the nongeneric conduct.” Id. (quotation
omitted). To establish such a realistic probability, he “must at least point to his
own case or other cases in which the state courts in fact did apply the statute in the
special (nongeneric) manner for which he argues.” Id. As the BIA noted, Alarcon-
Vega pointed to no instance in which Alabama has prosecuted a person under
§ 13A-12-121(c) “for any conduct that falls outside of the CIMT definition.”
Accordingly, we deny his petition for review.
PETITION DISMISSED IN PART AND DENIED IN PART.
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JORDAN, Circuit Judge, concurring.
I concur in the judgment.
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