10-599-ag

Prus v. Holder

1 UNITED STATES COURT OF APPEALS

2

3 FOR THE SECOND CIRCUIT

4

5 

6

7 August Term, 2011

8

9 (Argued: September 13, 2011 Decided: September 28, 2011)

10

11 Docket No. 10-599-ag

12 

13

14 OKSANA NIKOLAYEVNA PRUS,

15

16 Petitioner,

17

18 –v.– 

19

20 ERIC H. HOLDER, JR., United States Attorney General,

21

22 Respondent.

23

24 

25

26 Before:

27 CALABRESI, WESLEY, and LYNCH, Circuit Judges.

28

29 Petition for review of a Board of Immigration Appeals

30 order, which declined to reconsider its previous decision

31 that Petitioner had been convicted of an aggravated felony. 

32 The order dismissed Petitioner’s appeal from an Immigration

33 Judge’s order of removal, which denied Petitioner’s

34 application for asylum, withholding of removal, and relief

35 under the Convention Against Torture. We hold that the

36 Petitioner’s New York state offense of promoting

37 prostitution in the third degree did not constitute an

38 aggravated felony, and thus, Petitioner is not removable. 

39

40 Petition GRANTED.

41 

42

43 ANNE E. DOEBLER, Buffalo, NY, for Petitioner.

44
2

1 JEFFREY BERNSTEIN, Attorney, U.S. Department of

2 Justice, Civil Division (Tony West, Assistant

3 Attorney General, Civil Division, Richard M.

4 Evans, Assistant Director, Allen W. Hausman,

5 Senior Litigation Counsel, Office of

6 Immigration Litigation, on the brief), for

7 Eric H. Holder, Jr., United States Attorney

8 General, Washington, D.C., for Respondent.

9

10 

11

12 PER CURIAM: 

13 Petitioner Oksana Nikolayevna Prus was convicted in New

14 York for promoting prostitution in the third degree. The

15 Board of Immigration Appeals (“BIA”) found her removable,

16 concluding that her offense constituted an aggravated felony

17 under the Immigration and Nationality Act (“INA”)

18 § 101(a)(43)(K)(i), 8 U.S.C. § 1101(a)(43)(K)(i). Prus

19 seeks review of the BIA’s order declining to reconsider

20 whether she had been convicted of an aggravated felony and

21 dismissing her appeal from an order of removal. Prus argues

22 that her offense does not constitute an aggravated felony

23 because New York law defines “prostitution” more broadly

24 than federal law does for the INA. We agree and hold that

25 the BIA erred in finding that Prus’s offense was an

26 aggravated felony. Accordingly, we grant the petition for

27 review. We vacate the order of removal and remand to the

28 BIA to terminate Prus’s removal proceedings. 
3

1 Background

2 Prus, a native of Ukraine, entered the United States in

3 May 1995 as a derivative refugee. In June 1996, she

4 adjusted her status from refugee to lawful permanent

5 resident. In June 2007, she was convicted of promoting

6 prostitution in the third degree, in violation of New York

7 Penal Law §§ 20.00 and 230.25. In November 2007, Prus was

8 served with a Notice to Appear charging her as removable

9 under INA § 237(a)(2)(A)(iii) for having been convicted of

10 an aggravated felony under INA § 101(a)(43)(K)(i).

11 In her removal proceedings, Prus admitted her

12 conviction but contested removability. She argued that the

13 New York conviction for promoting prostitution was not an

14 aggravated felony under INA § 101(a)(43)(K)(i). The

15 Immigration Judge (“IJ”) agreed. The IJ held that Prus’s

16 conviction did not constitute an aggravated felony because 

17 New York’s definition of prostitution is broader than the

18 the INA’s applicable definition, which includes only sexual

19 intercourse for hire. The IJ, therefore, terminated Prus’s

20 removal proceedings.

21 The government appealed, and in a June 23, 2009 order,

22 the BIA vacated the IJ’s decision. In re Oksana Nikolayevna
4

1 Prus, No. A071 310 449 (B.I.A. June 23, 2009), vacating No.

2 A071 310 449 (Immig. Ct. Buffalo, NY Jan. 3, 2008). The BIA

3 found that Prus’s conviction constituted an aggravated

4 felony. Id. The BIA noted that even though New York’s

5 definition of prostitution encompassed acts that would not

6 constitute prostitution under the federal law, Prus’s

7 offense “‘relat[ed] to’ the owning, controlling, managing or

8 supervising of a ‘prostitution business’ as described in the

9 [INA].” Id.

10 On remand, Prus filed an application for asylum,

11 withholding of removal, and relief under the Convention

12 Against Torture (“CAT”). The IJ denied Prus’s application

13 for relief and ordered her removed to Ukraine. The IJ found

14 that Prus was ineligible for asylum because she had been

15 convicted of an aggravated felony and that she did not meet

16 her burden of proof to establish eligibility for withholding

17 of removal or CAT relief.

18 On January 22, 2010, the BIA dismissed Prus’s appeal,

19 declining to reconsider its previous holding that Prus had

20 been convicted of an aggravated felony. In re Oksana

21 Nikolayevna Prus, No. A071 310 449 (B.I.A. Jan. 22, 2010),

22 aff’g No. A071 310 449 (Immig. Ct. Buffalo, NY Sept. 28,
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

1 2009). The BIA also agreed with the IJ that Prus was

2 ineligible for asylum and that she did not establish her

3 eligibility for withholding of removal or relief under the

4 CAT. Id. Prus now petitions this Court to review the BIA’s

5 decision.

6 Discussion

7 Prus challenges the BIA’s finding that her New York

8 conviction for promoting prostitution in the third degree

9 constitutes an aggravated felony under INA

§ 101(a)(43)(K)(i).1 10 Federal courts lack jurisdiction to

11 consider a petition for review filed by an alien who is

12 removable due to commission of an aggravated felony, but we

13 retain jurisdiction to review whether an alien has, as a

14 matter of law, committed such an aggravated felony. 

15 Kamagate v. Ashcroft, 385 F.3d 144, 149 (2d Cir. 2004). 

16 We review the BIA’s determination that a state

17 conviction constitutes an aggravated felony de novo, 

18 Richards v. Ashcroft, 400 F.3d 125, 127 (2d Cir. 2005), and

19 employ the categorical approach to determine whether the

20 crime for which Prus was convicted constitutes an aggravated
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 1 “Under this approach, the singular circumstances

2 of an individual petitioner’s crimes should not be

3 considered, and only the minimum criminal conduct necessary

4 to sustain a conviction under a given statute is relevant.” 

5 Blake v. Gonzales, 481 F.3d 152, 156 (2d Cir. 2007)

6 (internal quotation marks and alteration omitted). “If the

7 criminal statute punishes conduct that falls outside the

8 INA’s definition, then the crime does not constitute an

9 aggravated felony.” Richards, 400 F.3d at 128.

10 Congress did not define “prostitution” in the INA. The

11 Attorney General, however, has—for a different provision of

12 the INA—defined the term as “engaging in promiscuous sexual

13 intercourse for hire.” 22 C.F.R. § 40.24(b). In Matter of

14 Gonzales-Zoquiapan, 24 I&N Dec. 549, 553 (BIA 2008), the BIA

15 employed that definition to interpret INA § 212(a)(2)(D),

16 which relates to the inadmissibility of aliens entering the

17 United States to engage in prostitution. Because the term
7

1 prostitution is undefined in the INA, the BIA’s reasonable

2 view of the definition of the term in Matter of Gonzales3 Zoquiapan is entitled to Chevron deference. See Xia Fan

4 Huang v. Holder, 591 F.3d 124, 129 (2d Cir. 2010). And

5 because it is “the normal rule of statutory construction

6 that identical words used in different parts of the same act

7 are intended to have the same meaning,” the same definition

8 of prostitution should be used to interpret INA

9 § 101(a)(43)(K)(i). Theodoropoulos v. INS, 358 F.3d 162,

10 171 (2d Cir. 2004) (quoting Gustafson v. Alloyd Co., 513

11 U.S. 561, 570 (1995)). Thus we conclude that “prostitution”

12 in INA § 101(a)(43)(K)(i) refers to “promiscuous sexual

13 intercourse for hire.” 

14 Under New York law, a person is guilty of promoting

15 prostitution in the third degree when she knowingly

16 “[a]dvances or profits from prostitution by managing,

17 supervising, controlling or owning, either alone or in

18 association with others, a house of prostitution or a

19 prostitution business or enterprise involving prostitution

20 activity by two or more prostitutes.” N.Y. Penal Law

21 § 230.25(1). In New York, “[a] person is guilty of

22 prostitution when such person engages or agrees or offers to
8

1 engage in sexual conduct with another person in return for a

2 fee.” Id. § 230.00. 

3 Although “sexual conduct” is not defined in Article

4 230, the plain language of the statute makes clear that

5 prostitution in New York encompasses accepting payment for

6 sexual acts beyond the “sexual intercourse” that is the

7 exclusive subject of the immigration-law definition. 

8 “Conduct” is an extremely broad term, defined as “the way a

9 person acts,” The American Heritage College Dictionary 290

10 (3d ed. 2000); a legislature could not plausibly be

11 understood to have used such a broad term if it meant to

12 refer only to the specific act of sexual intercourse.

13 The New York courts have indeed so interpreted the

14 statute. While New York courts have differed in how they

15 have defined the term, and in where they have looked for aid

16 in interpreting it, they have consistently held, over a

17 nearly 40-year period, that the term encompasses acts other

18 than intercourse. For example, in People v. Block, 337

19 N.Y.S.2d 153, 156-58 (Cnty. Ct. 1972), the court looked to

20 the definitions of “sexual conduct” in New York Penal Law

21 Articles 235 and 245 (respectively defining the crimes of

22 obscenity and public lewdness) and held that “sexual
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

1 conduct” for purposes of the definition of prostitution

2 included physical conduct with a “person’s clothed or

unclothed genitals” or “pubic area.”3 3 Rejecting the Block

4 court’s reliance on definitions from other articles of the

5 criminal code, the court in People v. Costello, 395 N.Y.S.2d

6 139, 141 (Sup. Ct. 1977), reasoned that Article 230

7 “prohibit[ed] the commercial exploitation of sexual

8 gratification,” and relied on a “common understanding of the

9 term ‘prostitution’” to include “sexual intercourse, deviate

10 sexual intercourse, and masturbation” within the

definition.4 11 More recently, the term has been held to

12 encompass acts such as lap dancing in which the dancer's

13 naked body is touched. People v. Hinzmann, 677 N.Y.S.2d

14 440, 442 (Crim. Ct. 1998). Yet another court expressed the

15 consensus of these cases that in using the term “sexual

16 conduct,” “the legislature opted for an elastic concept

17 which encompassed traditional forms of prostitution but
10

1 could also adapt to new methods of selling the arousal of

2 sexual desire.” People v. Medina, 685 N.Y.S.2d 599, 601

3 (Crim. Ct. 1999). We have identified no New York case that

4 limits the meaning of “prostitution” under New York law to

5 the selling of “sexual intercourse,” as it is defined for

6 purposes of federal immigration law.

7 In sum, whatever uncertainty may exist about the

8 precise contours of the New York definition of

9 “prostitution,” it is evident that the law encompasses a

10 broader range of sexual activity than the “sexual

11 intercourse” that is the sole subject of the definition

12 applicable in the immigration context. Indeed, it is so

13 evident that the BIA acknowledged that “the Immigration

14 Judge was correct in noting that the term ‘prostitution’

15 under New York law encompassed acts that fall outside the

16 federal definition of that term.” In re Oksana Nikolayevna

17 Prus, No. A071 310 449 (B.I.A. June 23, 2009) (emphasis

18 added).

19 Nevertheless, the BIA found that Prus’s conviction

20 constituted an aggravated felony under INA

21 § 101(a)(43)(K)(i) because the state statute includes

22 conduct that “‘relates to the owning, controlling, managing
11

1 or supervising of a prostitution business.’” Id. (quoting

2 INA § 101(a)(43)(K)(i)). The BIA premised its decision on

3 the similarity of the language of the state and federal

4 statutes, finding that “the New York statute similarly

5 requires that the perpetrator of the crime be ‘managing,

6 supervising, controlling, or owning’ the house of

7 prostitution.” Id. This was error.

8 The plain language of INA § 101(a)(43)(K)(i) limits the

9 statute’s reach to crimes associated with prostitution, not

10 crimes associated with other proscribed conduct. See

11 Mizrahi v. Gonzales, 492 F.3d 156, 158–59 (2d Cir. 2007). 

12 Thus, while the term “relates to” indicates that a broad

13 array of crimes are encompassed in § 101(a)(43)(K)(i)’s

14 ambit, the provision only encompasses crimes involving

15 conduct meeting the relevant definition of prostitution—not

16 something merely like prostitution. We have previously

17 explained that “the phrase ‘relating to’ is deemed

18 synonymous to ‘in connection with,’ ‘associated with,’ ‘with

19 respect to,’ and ‘with reference to.’” Kamagate, 385 F.3d

20 at 154. In Kamagate, we concluded that possession of a

21 forged instrument with the intent to deceive, defraud, or

22 injure was a crime “relating to counterfeiting” because the
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

1 criminalization of possession discouraged the underlying

2 crime of counterfeiting. Id. at 155. Contrary to the BIA’s

3 interpretation, the term “relates to” in § 101(a)(43)(K)(i)

4 does not bring within the provision’s sweep the management

5 of conduct that is like, but is not, prostitution. The

6 phrase “relates to” modifies “owning, controlling, managing

7 or supervising”; it does not modify the definition of the

underlying crime.5 8

9 Accordingly, because N.Y. Penal Law § 230.25(1)

10 punishes conduct that does not involve a “prostitution

11 business” as the term prostitution is used in the INA,

12 Prus’s conviction does not constitute an aggravated felony. 

13 See Richards, 400 F.3d at 128. Thus, the BIA erred in

14 finding Prus removable. Because Prus is not removable, we

15 need not address her challenge to the agency’s denial of her

16 application for asylum, withholding of removal, and CAT

17 relief.
13

1 Conclusion

2 For the foregoing reasons, the petition for review is

3 GRANTED. The order of removal is VACATED, and the case is

4 REMANDED to the BIA with directions to terminate

5 Petitioner’s removal proceedings. The pending motion for a

6 stay of removal in this petition is DISMISSED as moot.