UNITED STATES CO URT OF APPEALS

FOR THE TENTH CIRCUIT

ABEL FLORENTINO-FRANCISCO, Petitioner,

v. LORETTA E. LYNCH, United States Attorney General, * Respondent. No. 14-9601 (Petition for Review)

ORDER AND JUDGMENT **

Before BRISCOE , Chief Judge, McKAY and PHILLIPS , Circuit Judges.

Abel Florentino-Francisco, a native and citizen of Mexico, challenges the Board of Immigration Appeals’ (BIA’s) decision upholding the denial of his

* In accordance with Rule 43( c)(2) of the Federal Rules of Appellate Procedure, Loretta E. Lynch is substitute d for Eric H. Holder, Jr., as the respondent in this action.

** After examining the briefs and appella te record, this pa nel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### May 27, 2015

Elisabeth A. Shumaker Clerk of Court- 2 - application for cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.

B ACKGROUND Mr. Florentino unlawfully entered the Un ited States in 1999. Several years later he was convicted of soliciting prostit ution in violation of Denver Municipal Code § 38-158(A)(1). 1 In 2012, the Department of Homeland Security initiated removal proceedings against Mr. Florentino based on his unlaw ful entry. He appeared before an immigration judge (IJ), conceded removab ility, and sought cance llation of removal, arguing that removal would cr eate an exceptional and extr emely unusual hardship

for his United States citizen children. The IJ denied Mr. Florentino’s application, ruling that cancellation was not available because his solicitation conviction was categorically for a crime invol ving moral turpitude (CIMT). See Garcia v. Holder , 584 F.3d 1288, 1289 (10th Cir. 2009) (observing that “[ a]n alien convicted of a

CIMT is considered inadmissible and is therefore not eligible for cancellation of removal”). The BIA agreed with the IJ , reasoning that solicit ation of prostitution “facilitate[s] the act of pr ostitution.” R. at 5.

1 Section 38-158(A)(1) provides that “[i] t shall be unlawful for any person . . . [t]o solicit another person for the purpose of prostitution.” Prostitu tion is defined as “any act of sexual intercourse . . . with any person not his/ her spouse in exchange for money or other thing of value.” Id. § 38-156(8).- 3 - D ISCUSSION Because a single member of the BI A entered a brief order dismissing Mr. Florentino’s appeal, we focus our attention on that decision. See Sarr v. Gonzales , 474 F.3d 783, 790 (10th Cir. 2007). We review de novo whether a state

conviction constitutes a CIMT. Rodriguez-Heredia v. Holder , 639 F.3d 1264, 1267 (10th Cir. 2011). 2

“To determine whether a state convicti on is a [CIMT], we ordinarily employ the categorical approach.” Id. Under that approach, “t his court looks only to the statutory definition of the o ffense and not to the underlying facts of the conviction to

determine whether the offense involves moral turpitude.” Efagene v. Holder , 642 F.3d 918, 921 (10th Cir. 2011). “Moral turpitude re fers to conduct which is inherently base, vile, or de praved, contrary to the accepted rules of morality and duties owed between man and man, either on e’s fellow man or soci ety in general.”

2 As part of our review, we generally defer under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837 (1984), “to precedential BIA interpretations of ambiguous federal immigrati on statutes so long as the [BIA’s] interpretation does not contra vene Congressional intent.” Ibarra v. Holder , 736 F.3d 903, 910 (10th Cir. 2013). The phrase, CIMT, is “[w]ithout question” ambiguous. Villatoro v. Holder , 760 F.3d 872, 875 (8th Cir. 2014) (internal quotation marks omitted). But the BIA’ s decision in this case is “not precedential within the agency.” Efagene v. Holder , 642 F.3d 918, 920 (10th Cir. 2011). Nor is the decision “reli[ant] on prior BIA precedent addressing the same question,” id. , despite inclusion of dicta from Matter of Gonzalez-Zoquiapan , 24 I. & N. Dec. 549, 554 (BIA 2008), suggesting that solicit ation of prostitution might be a CIMT. Thus, Chevron deference is not warranted and, instead, we apply the lesser quantum of deference from Skidmore v. Swift & Co. , 323 U.S. 134, 140 (1944) (indicating that an agency’s statutory interpretation is “entitled to resp ect” if it has the “power to persuade”).- 4 - Id. (internal quotation marks omitted). “[F]or an offense to involve moral turpitude, it must require a reprehensible or despicable act”— one “tha t is inherently wrong, or malum in se, rather than conduct deem ed wrong only because of a statutory proscription, malum prohibitum.” Id. at 921 (italics omitted). “A crime of moral turpitude, moreover, necessarily involves an evil intent or maliciousness in carrying out the reprehensible act.” Id. at 921-22. The BIA has long viewed prostitution-rela ted crimes as mora lly turpitudinous. See, e.g. , Matter of Lambert , 11 I. & N. Dec. 340, 34 2 (BIA 1965) (holding that “renting rooms with knowledge that the room s were to be used for the purpose of lewdness, assignation or pros titution were for crimes in volving moral turpitude”); Matter of A

‒ , 5 I. & N. Dec. 546, 549 (BIA 1953) (“[T]he conducting of a brothel is a form of commercial vice involving the prac tice of immorality for hire, which is accompanied by an evil intent a nd involves moral turpitude.”); Matter of W

‒ , 4 I. & N. Dec. 401, 402 (BIA 1951) (“It is well established that the crime of practicing prostitution invol ves moral turpitude.”); Matter of S

‒ L

‒ , 3 I. & N. Dec. 396, 397, 398 (BIA 1949) (holding that “pro cur[ing] a female inmate for a house of prostitution” involves moral turpitude because (1) it “is a crime in which assistance and aid is given to the carrying on of the bu siness of prostitution” and (2) “[i]t is so far contrary to moral law, as interpre ted by the general moral sense of the community, that the offender is brought to public disgrace, is no longer generally respected, and is deprived of so cial recognition by the community”); Matter of P

‒ ,- 5 - 3 I. & N. Dec. 20, 22 (BIA 1947) (concluding that the crime of “keeping a house of ill-fame . . . palpably in volves moral turpitude”). Deferring to the BIA’s view of prostitu tion-related crimes, the Ninth Circuit Court of Appeals has held that soliciti ng prostitution also invol ves moral turpitude: [S]oliciting an act of prostitution is not significantly less base, vile, and depraved than engaging in an act of prostitution. Solicitation is the direct precursor to the act. A pers on who solicits an act of prostitution does not become appreciably more mo rally turpitudinous when the other party accepts or the two engage in th e act. The base act is the intended result of the base request or offer. Solicitation of prostitution is also closely analogous to renting a room with the knowledge that it will be used for prostitution. Both are intended to facilitate the act of pr ostitution. There is no meaningful distinction that would lead us to c onclude that engaging in an act of prostitution is a crime of moral turpit ude but that soliciting or agreeing to engage in an act of prostitution is not.

Rohit v. Holder , 670 F.3d 1085, 1089-90 (9th Cir. 2012) (internal quotation marks omitted). We agree with the Ninth Circuit. If prostitution is inhere ntly base, vile, or depraved, so too is the atte mpt to engage a prostitute by solicitation. Both crimes

share a similar intent a nd result in the same act. Mr. Florentino disputes the premise that prostitution is morally turpitudinous. He argues that prostitution wa s historically considered immoral because it involves extramarital sex, and that societal views on that subject have evolved. He then contends that criminalizing prostitution a nd the solicitation ther eof is merely for regulatory purposes.- 6 - We reject Mr. Florentino’s line of re asoning. First, we must accept the premise that prostitution is a CIMT, as it arises from the BIA’s reasonable construction of the statutory term “moral turpitude.” See Padilla-Caldera v. Holder , 637 F.3d 1140, 1147 (10th Cir. 2011) (“[I]f the implemen ting agency’s construction is reasonable, Chevron requires a federal court to accep t the agency’s construction of the statute, even if the agen cy’s reading differs from what the court believes is the best statutory interpretation.” (i nternal quotation marks omitted)); accord Rohit , 670 F.3d at 1090 (applying Chevron deference to the BIA’s long-held view that prostitution is a CIMT). Second, we disagree with Mr. Florenti no’s characterization of prostitution and solicitation of prostitution as mere regulatory offenses. Re gulatory offenses typically “concern[ ] filing, reporting, and licensing requirements.” Efagene , 642 F.3d at 923. In contrast, prostitution has been deemed “hurtful to th e cause of sound private and public morality and to the gene ral well-being of the people.” United States v. Bitty , 208 U.S. 393, 401 (1908). Pr ostitution, and derivatively so licitation of prostitution, are thus inherently wrong, not just wr ong because of a stat utory proscription. 3

3 While the BIA in this case noted that “prostitution in some states has become a regulatory offense and is a quality of life crime to prevent public disord er,” R. at 5, it nevertheless found Mr. Florentino’s crime to be a CIMT, reasoning that “offenses such as solicitation of prostitution play” a role “in the illicit sex trade, with the violator who solicits a prosti tute not knowing whether the pr ostitute is a ‘captive’ of a trafficking organization, or controlled by a pi mp or a more sinister person,” R. at 6. The BIA’s reasoning suggests a modified categorical approach to determining whether Mr. Florentino committed a CIMT, a nd we reject that r easoning. Colorado’s (continued)- 7 - The BIA did not err in determining that soliciting prostituti on in violation of Denver Municipal Code § 38-1 58(A)(1) constitutes a CIMT.

C ONCLUSION The petition for review is denied.

Entered for the Court

Gregory A. Phillips Circuit Judge

solicitation-of-prostitution statute does not “set[ ] out one or more elements of the offense in the alternative,” United States v. Trent , 767 F.3d 1046, 1052 (10th Cir. 2014) (internal quotation marks omitted), cert. denied , 135 S. Ct. 1447 (2015), so as to require a modified categoric al analysis. We thus do not look beyond the statute to any facts underlying Mr. Fl orentino’s conviction.