Prus v. Holder

10-599-ag
Prus v. Holder
UNITED STATES COURT OF APPEALS 1
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FOR THE SECOND CIRCUIT 3
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5
6
August Term, 2011 7
8
(Argued: September 13, 2011 Decided: September 28, 2011) 9
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Docket No. 10-599-ag 11
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O KSANA N IKOLAYEVNA P RUS , 14
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Petitioner, 16
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–v.– 18
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E RIC H. H OLDER , J R ., United States Attorney General, 20
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Respondent. 22
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24
25
Before: 26
C ALABRESI , W ESLEY , and L YNCH , Circuit Judges. 27
28
Petition for review of a Board of Immigration Appeals 29
order, which declined to reconsider its previous decision 30
that Petitioner had been convicted of an aggravated felony. 31
The order dismissed Petitioner’s appeal from an Immigration 32
Judge’s order of removal, which denied Petitioner’s 33
application for asylum, withholding of removal, and relief 34
under the Convention Against Torture. We hold that the 35
Petitioner’s New York state offense of promoting 36
prostitution in the third degree did not constitute an 37
aggravated felony, and thus, Petitioner is not removable. 38
39
Petition G RANTED. 40
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42
A NNE E. D OEBLER , Buffalo, NY, for Petitioner. 43
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2
J EFFREY B ERNSTEIN , Attorney, U.S. Department of 1
Justice, Civil Division (Tony West, Assistant 2
Attorney General, Civil Division, Richard M. 3
Evans, Assistant Director, Allen W. Hausman, 4
Senior Litigation Counsel, Office of 5
Immigration Litigation, on the brief), for 6
Eric H. Holder, Jr., United States Attorney 7
General, Washington, D.C., for Respondent. 8
9
10
11
P ER C URIAM : 12
Petitioner Oksana Nikolayevna Prus was convicted in New 13
York for promoting prostitution in the third degree. The 14
Board of Immigration Appeals (“BIA”) found her removable, 15
concluding that her offense constituted an aggravated felony 16
under the Immigration and Nationality Act (“INA”) 17
§ 101(a)(43)(K)(i), 8 U.S.C. § 1101(a)(43)(K)(i). Prus 18
seeks review of the BIA’s order declining to reconsider 19
whether she had been convicted of an aggravated felony and 20
dismissing her appeal from an order of removal. Prus argues 21
that her offense does not constitute an aggravated felony 22
because New York law defines “prostitution” more broadly 23
than federal law does for the INA. We agree and hold that 24
the BIA erred in finding that Prus’s offense was an 25
aggravated felony. Accordingly, we grant the petition for 26
review. We vacate the order of removal and remand to the 27
BIA to terminate Prus’s removal proceedings. 28

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3
Background 1
Prus, a native of Ukraine, entered the United States in 2
May 1995 as a derivative refugee. In June 1996, she 3
adjusted her status from refugee to lawful permanent 4
resident. In June 2007, she was convicted of promoting 5
prostitution in the third degree, in violation of New York 6
Penal Law §§ 20.00 and 230.25. In November 2007, Prus was 7
served with a Notice to Appear charging her as removable 8
under INA § 237(a)(2)(A)(iii) for having been convicted of 9
an aggravated felony under INA § 101(a)(43)(K)(i). 10
In her removal proceedings, Prus admitted her 11
conviction but contested removability. She argued that the 12
New York conviction for promoting prostitution was not an 13
aggravated felony under INA § 101(a)(43)(K)(i). The 14
Immigration Judge (“IJ”) agreed. The IJ held that Prus’s 15
conviction did not constitute an aggravated felony because 16
New York’s definition of prostitution is broader than the 17
the INA’s applicable definition, which includes only sexual 18
intercourse for hire. The IJ, therefore, terminated Prus’s 19
removal proceedings. 20
The government appealed, and in a June 23, 2009 order, 21
the BIA vacated the IJ’s decision. In re Oksana Nikolayevna 22

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4
Prus, No. A071 310 449 (B.I.A. June 23, 2009), vacating No. 1
A071 310 449 (Immig. Ct. Buffalo, NY Jan. 3, 2008). The BIA 2
found that Prus’s conviction constituted an aggravated 3
felony. Id. The BIA noted that even though New York’s 4
definition of prostitution encompassed acts that would not 5
constitute prostitution under the federal law, Prus’s 6
offense “‘relat[ed] to’ the owning, controlling, managing or 7
supervising of a ‘prostitution business’ as described in the 8
[INA].” Id. 9
On remand, Prus filed an application for asylum, 10
withholding of removal, and relief under the Convention 11
Against Torture (“CAT”). The IJ denied Prus’s application 12
for relief and ordered her removed to Ukraine. The IJ found 13
that Prus was ineligible for asylum because she had been 14
convicted of an aggravated felony and that she did not meet 15
her burden of proof to establish eligibility for withholding 16
of removal or CAT relief. 17
On January 22, 2010, the BIA dismissed Prus’s appeal, 18
declining to reconsider its previous holding that Prus had 19
been convicted of an aggravated felony. In re Oksana 20
Nikolayevna Prus, No. A071 310 449 (B.I.A. Jan. 22, 2010), 21
aff’g No. A071 310 449 (Immig. Ct. Buffalo, NY Sept. 28, 22

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1 INA § 101(a)(43)(K)(i) provides that an aggravated felony
includes an offense that “relates to the owning, controlling,
managing or supervising of a prostitution business.”
5
2009). The BIA also agreed with the IJ that Prus was 1
ineligible for asylum and that she did not establish her 2
eligibility for withholding of removal or relief under the 3
CAT. Id. Prus now petitions this Court to review the BIA’s 4
decision. 5
Discussion 6
Prus challenges the BIA’s finding that her New York 7
conviction for promoting prostitution in the third degree 8
constitutes an aggravated felony under INA 9
§ 101(a)(43)(K)(i). 1 Federal courts lack jurisdiction to 10
consider a petition for review filed by an alien who is 11
removable due to commission of an aggravated felony, but we 12
retain jurisdiction to review whether an alien has, as a 13
matter of law, committed such an aggravated felony. 14
Kamagate v. Ashcroft, 385 F.3d 144, 149 (2d Cir. 2004). 15
We review the BIA’s determination that a state 16
conviction constitutes an aggravated felony de novo, 17
Richards v. Ashcroft, 400 F.3d 125, 127 (2d Cir. 2005), and 18
employ the categorical approach to determine whether the 19
crime for which Prus was convicted constitutes an aggravated 20

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2 We reserve opinion on whether the state statute under
which Prus was convicted—New York Penal Law § 230.25(1)—is a
divisible or non-divisible statute, and, in turn, whether it
requires analysis under the categorical or modified categorical
approach. See Lanferman v. Bd. of Immigration Appeals, 576 F.3d
84, 88–89 (2d Cir. 2009) (per curiam). Because Prus’s record of
conviction contains no facts beyond recitations of § 230.25(1) in
full, the outcome of our analysis would be the same whichever of
the two approaches we applied.
6
felony. 2 “Under this approach, the singular circumstances 1
of an individual petitioner’s crimes should not be 2
considered, and only the minimum criminal conduct necessary 3
to sustain a conviction under a given statute is relevant.” 4
Blake v. Gonzales, 481 F.3d 152, 156 (2d Cir. 2007) 5
(internal quotation marks and alteration omitted). “If the 6
criminal statute punishes conduct that falls outside the 7
INA’s definition, then the crime does not constitute an 8
aggravated felony.” Richards, 400 F.3d at 128. 9
Congress did not define “prostitution” in the INA. The 10
Attorney General, however, has—for a different provision of 11
the INA—defined the term as “engaging in promiscuous sexual 12
intercourse for hire.” 22 C.F.R. § 40.24(b). In Matter of 13
Gonzales-Zoquiapan, 24 I&N Dec. 549, 553 (BIA 2008), the BIA 14
employed that definition to interpret INA § 212(a)(2)(D), 15
which relates to the inadmissibility of aliens entering the 16
United States to engage in prostitution. Because the term 17

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7
prostitution is undefined in the INA, the BIA’s reasonable 1
view of the definition of the term in Matter of Gonzales- 2
Zoquiapan is entitled to Chevron deference. See Xia Fan 3
Huang v. Holder, 591 F.3d 124, 129 (2d Cir. 2010). And 4
because it is “the normal rule of statutory construction 5
that identical words used in different parts of the same act 6
are intended to have the same meaning,” the same definition 7
of prostitution should be used to interpret INA 8
§ 101(a)(43)(K)(i). Theodoropoulos v. INS, 358 F.3d 162, 9
171 (2d Cir. 2004) (quoting Gustafson v. Alloyd Co., 513 10
U.S. 561, 570 (1995)). Thus we conclude that “prostitution” 11
in INA § 101(a)(43)(K)(i) refers to “promiscuous sexual 12
intercourse for hire.” 13
Under New York law, a person is guilty of promoting 14
prostitution in the third degree when she knowingly 15
“[a]dvances or profits from prostitution by managing, 16
supervising, controlling or owning, either alone or in 17
association with others, a house of prostitution or a 18
prostitution business or enterprise involving prostitution 19
activity by two or more prostitutes.” N.Y. Penal Law 20
§ 230.25(1). In New York, “[a] person is guilty of 21
prostitution when such person engages or agrees or offers to 22

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8
engage in sexual conduct with another person in return for a 1
fee.” Id. § 230.00. 2
Although “sexual conduct” is not defined in Article 3
230, the plain language of the statute makes clear that 4
prostitution in New York encompasses accepting payment for 5
sexual acts beyond the “sexual intercourse” that is the 6
exclusive subject of the immigration-law definition. 7
“Conduct” is an extremely broad term, defined as “the way a 8
person acts,” The American Heritage College Dictionary 290 9
(3d ed. 2000); a legislature could not plausibly be 10
understood to have used such a broad term if it meant to 11
refer only to the specific act of sexual intercourse. 12
The New York courts have indeed so interpreted the 13
statute. While New York courts have differed in how they 14
have defined the term, and in where they have looked for aid 15
in interpreting it, they have consistently held, over a 16
nearly 40-year period, that the term encompasses acts other 17
than intercourse. For example, in People v. Block, 337 18
N.Y.S.2d 153, 156-58 (Cnty. Ct. 1972), the court looked to 19
the definitions of “sexual conduct” in New York Penal Law 20
Articles 235 and 245 (respectively defining the crimes of 21
obscenity and public lewdness) and held that “sexual 22

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3 In addition to these definitions, a slightly different,
but also expansive, definition of “sexual conduct” appears in New
York Penal Law Article 130, which defines the term for purposes
of the crimes of sexual assault and abuse.
4 See also People v. Tribble, N.Y.L.J., Sept. 29, 1992, at
22, col. 3 (Crim. Ct.); People v. Fink, N.Y.L.J., May 22, 1992,
at 23, col. 4 (Crim. Ct.); People v. Kovner, 409 N.Y.S.2d 349,
416 n.* (Sup. Ct. 1978).
9
conduct” for purposes of the definition of prostitution 1
included physical conduct with a “person’s clothed or 2
unclothed genitals” or “pubic area.” 3 Rejecting the Block 3
court’s reliance on definitions from other articles of the 4
criminal code, the court in People v. Costello, 395 N.Y.S.2d 5
139, 141 (Sup. Ct. 1977), reasoned that Article 230 6
“prohibit[ed] the commercial exploitation of sexual 7
gratification,” and relied on a “common understanding of the 8
term ‘prostitution’” to include “sexual intercourse, deviate 9
sexual intercourse, and masturbation” within the 10
definition. 4 More recently, the term has been held to 11
encompass acts such as lap dancing in which the dancer's 12
naked body is touched. People v. Hinzmann, 677 N.Y.S.2d 13
440, 442 (Crim. Ct. 1998). Yet another court expressed the 14
consensus of these cases that in using the term “sexual 15
conduct,” “the legislature opted for an elastic concept 16
which encompassed traditional forms of prostitution but 17

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10
could also adapt to new methods of selling the arousal of 1
sexual desire.” People v. Medina, 685 N.Y.S.2d 599, 601 2
(Crim. Ct. 1999). We have identified no New York case that 3
limits the meaning of “prostitution” under New York law to 4
the selling of “sexual intercourse,” as it is defined for 5
purposes of federal immigration law. 6
In sum, whatever uncertainty may exist about the 7
precise contours of the New York definition of 8
“prostitution,” it is evident that the law encompasses a 9
broader range of sexual activity than the “sexual 10
intercourse” that is the sole subject of the definition 11
applicable in the immigration context. Indeed, it is so 12
evident that the BIA acknowledged that “the Immigration 13
Judge was correct in noting that the term ‘prostitution’ 14
under New York law encompassed acts that fall outside the 15
federal definition of that term.” In re Oksana Nikolayevna 16
Prus, No. A071 310 449 (B.I.A. June 23, 2009) (emphasis 17
added). 18
Nevertheless, the BIA found that Prus’s conviction 19
constituted an aggravated felony under INA 20
§ 101(a)(43)(K)(i) because the state statute includes 21
conduct that “‘relates to the owning, controlling, managing 22

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11
or supervising of a prostitution business.’” Id. (quoting 1
INA § 101(a)(43)(K)(i)). The BIA premised its decision on 2
the similarity of the language of the state and federal 3
statutes, finding that “the New York statute similarly 4
requires that the perpetrator of the crime be ‘managing, 5
supervising, controlling, or owning’ the house of 6
prostitution.” Id. This was error. 7
The plain language of INA § 101(a)(43)(K)(i) limits the 8
statute’s reach to crimes associated with prostitution, not 9
crimes associated with other proscribed conduct. See 10
Mizrahi v. Gonzales, 492 F.3d 156, 158–59 (2d Cir. 2007). 11
Thus, while the term “relates to” indicates that a broad 12
array of crimes are encompassed in § 101(a)(43)(K)(i)’s 13
ambit, the provision only encompasses crimes involving 14
conduct meeting the relevant definition of prostitution—not 15
something merely like prostitution. We have previously 16
explained that “the phrase ‘relating to’ is deemed 17
synonymous to ‘in connection with,’ ‘associated with,’ ‘with 18
respect to,’ and ‘with reference to.’” Kamagate, 385 F.3d 19
at 154. In Kamagate, we concluded that possession of a 20
forged instrument with the intent to deceive, defraud, or 21
injure was a crime “relating to counterfeiting” because the 22

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5 While this is a case of first impression in this Circuit,
the Ninth Circuit addressed the exact issue here in Depasquale v.
Gonzales, 196 F. App’x 580 (9th Cir. 2006). The Ninth Circuit
held that a conviction under a Hawaii statute for promoting
prostitution in the second degree did not constitute an
aggravated felony under INA § 101(a)(43)(K) because,
notwithstanding the “relates to” language in that provision, “the
definition of ‘prostitution’ in Hawaii’s statutes encompasses
conduct broader than any federal definition of prostitution.”
Depasquale, 196 F. App’x at 581–82.
12
criminalization of possession discouraged the underlying 1
crime of counterfeiting. Id. at 155. Contrary to the BIA’s 2
interpretation, the term “relates to” in § 101(a)(43)(K)(i) 3
does not bring within the provision’s sweep the management 4
of conduct that is like, but is not, prostitution. The 5
phrase “relates to” modifies “owning, controlling, managing 6
or supervising”; it does not modify the definition of the 7
underlying crime. 5
8
Accordingly, because N.Y. Penal Law § 230.25(1) 9
punishes conduct that does not involve a “prostitution 10
business” as the term prostitution is used in the INA, 11
Prus’s conviction does not constitute an aggravated felony. 12
See Richards, 400 F.3d at 128. Thus, the BIA erred in 13
finding Prus removable. Because Prus is not removable, we 14
need not address her challenge to the agency’s denial of her 15
application for asylum, withholding of removal, and CAT 16
relief. 17

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Conclusion 1
For the foregoing reasons, the petition for review is 2
GRANTED. The order of removal is VACATED, and the case is 3
REMANDED to the BIA with directions to terminate 4
Petitioner’s removal proceedings. The pending motion for a 5
stay of removal in this petition is DISMISSED as moot. 6

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