10-599-ag Prus v. Holder UNITED STATES COURT OF APPEALS 1 2 FOR THE SECOND CIRCUIT 3 4 5 6 August Term, 2011 7 8 (Argued: September 13, 2011 Decided: September 28, 2011) 9 10 Docket No. 10-599-ag 11 12 13 OKSANA N IKOLAYEVNA PRUS , 14 15 Petitioner , 16 17 –v.– 18 19 E RIC H. HOLDER , JR ., United States Attorney General, 20 21 Respondent

. 22 23 24 25 Before: 26 CALABRESI , WESLEY , and LYNCH , 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 41 42 ANNE E. DOEBLER , Buffalo, NY, for Petitioner

. 43 442 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 CURIAM : 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. 283 **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 224 Prus , No. A071 310 449 (B.I.A. June 23, 2009), vacatingNo. 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’gNo. A071 310 449 (Immig. Ct. Buffalo, NY Sept. 28, 221INA § 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 Pruswas 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). 1Federal 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 202We 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 177 prostitution is undefined in the INA, the BIA’s reasonable 1 view of the definition of the term in Matter of Gonzales2 Zoquiapanis 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 228 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 223In 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.” 3Rejecting 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. 4More 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 1710 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 correctin 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 2211 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 225While 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. 1713 **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