In the

United States Court of Appeals

For the Seventh Circuit

No. 10-3433

MANUEL DE JESUS FAMILIA ROSARIO,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General 

of the United States,

Respondent.

Petition for Review of an Order

of the Board of Immigration Appeals.

No. A046-778-586

ARGUED JUNE 10, 2011—DECIDED AUGUST 24, 2011

Before BAUER, FLAUM, and WILLIAMS, Circuit Judges.

WILLIAMS,Circuit Judge. Manuel de Jesus Familia Rosario

has been a Lawful Permanent Resident of the United

States since 1999. In November 2007, pursuant to a singlecount information, Familia Rosario pled guilty to aiding

and abetting a conspiracy, the object of which was a

violation of 8 U.S.C. § 1328, which prohibits the “importation into the United States of any alien for the purpose

of prostitution, or for any other immoral purpose.”
2 No. 10-3433

Familia Rosario’s role consisted of distributing condoms

to what he knew were brothels. At sentencing, the government conceded that Rosario was “a minor participant” and agreed to a two-level reduction in the calculation of his base offense level. In November of 2009, judgment was entered and Familia Rosario was sentenced

to time served.

The government commenced removal proceedings in

early 2010 on the grounds that Familia Rosario committed a crime involving moral turpitude under section

212(a)(2)(A)(i)(I) of the Immigration and Nationality Act

(“INA”), and for having indirectly or directly procured

prostitutes or persons for the purpose of prostitution,

pursuant to INA § 212(a)(2)(D)(ii). Familia Rosario conceded removability for a crime involving moral turpitude,

but denied removability for procuring persons for the

purpose of prostitution. He claimed that he was eligible

for cancellation of removal under INA § 240A(a), which

requires that the noncitizen have lawful permanent

residence for five years, continuous residence for seven

years, and no conviction for what amounts to an aggravated felony. Though not charged with removability

based on a conviction of an aggravated felony, the government argued, and the Immigration Judge agreed,

that Familia Rosario committed “an offense that relates

to the owning, controlling, managing or supervising of a

prostitution business,” and was therefore an aggravated

felon under INA § 101(a)(43)(K)(i). The Immigration

Judge denied Familia Rosario’s application for cancellation.

The Board of Immigration Appeals reviewed the Immigration Judge’s decision de novo, and affirmed the de-
No. 10-3433 3

termination that Familia Rosario’s conviction constituted

an aggravated felony. Rosario filed a timely petition of

review, followed by an emergency stay of removal during

the pendency of this appeal, which this court granted.

Because we have concluded that the “importation into the

United States of any alien for the purpose of prostitution,”

8 U.S.C. § 1328, encompasses conduct that is broader than

“an offense that relates to the owning, controlling, managing or supervising of a prostitution business,” INA

§ 101(a)(43)(K)(i), we find that Familia Rosario’s conviction is not properly categorized as an aggravated felony.

The petition for review is granted, the order of removal

is vacated, and the case remanded for consideration

of Familia Rosario’s application for cancellation of removal.

I. BACKGROUND

Manuel de Jesus Familia Rosario is a sixty year old

native and citizen of the Dominican Republic. He

has lived in the United States as a Lawful Permanent

Resident since 1999. Familia Rosario is married to a

United States citizen, with two citizen children, and a

child with Lawful Permanent Resident status.

In November of 2007, pursuant to a single-count information, Familia Rosario pled guilty in the United States

District Court for the District of Minnesota to aiding

and abetting a conspiracy to commit an offense against

the United States, in violation of 18 U.S.C. § 371 (conspiracy to commit offense or to defraud United States) and

18 U.S.C. § 2 (aiding and abetting statute). The object of the

conspiracy was a violation of 8 U.S.C. § 1328, which
4 No. 10-3433

prohibits the “importation into the United States of any

alien for the purpose of prostitution, or for any other

immoral purpose.” The factual basis of the plea agreement stated the following:

a. From in or about 2006 to on or about May 19, 2007,

two or more persons came to an agreement or understanding to commit an offense against the United

States, namely to run a prostitution operation in

the State of Minnesota using women from other countries and states.

b. With knowledge of the existence and purpose of

the conspiracy, the defendant voluntarily and intentionally aided and abetted the conspiracy.

c. In furtherance of the conspiracy, the defendant

distributed condoms or “chocolates” to various brothels for the purposes of prostitution. 

The plea agreement also stated that the “government

agrees that the defendant’s offense level should be decreased by 2 levels because the defendant was a minor

participant in the conspiracy.” Judgment was entered

in November of 2009, and Familia Rosario was sentenced

to time served.

The Department of Homeland Security commenced

removal proceedings against Familia Rosario in early 2010

and detained Familia Rosario in March 2010, where he

remains. His Notice to Appear charged that Familia

Rosario was removable from the United States for

having committed a crime involving moral turpitude

pursuant to section 212(a)(2)(A)(i)(I) of the Immigration

and Nationality Act (“INA”), and for having indirectly
No. 10-3433 5

This provision is also found at 8 U.S.C. § 1101(a)(43)(K)(i). 1

Unless otherwise noted, we shall only cite to the corresponding

provision of the Immigration and Nationality Act.

or directly procured prostitutes or persons for the

purpose of prostitution, pursuant to INA § 212(a)(2)(D)(ii).

During a hearing before the Immigration Judge (“IJ”)

in May of 2010, Familia Rosario conceded that he

was removable for having committed a crime of moral

turpitude, but denied certain factual allegations and

removability relating to the procurement of prostitutes.

Familia Rosario also argued that he was eligible for cancellation of removal under INA § 240A(a).

Because Familia Rosario conceded removability under

INA § 212(a)(2)(A)(i)(I) for a crime involving moral turpitude, the IJ determined that removability was established and did not reach removability under INA

§ 212(a)(2)(D)(ii), relating to the procurement of prostitutes. The IJ then addressed Familia Rosario’s application

for cancellation of removal. Under INA § 240A(a), a

noncitizen must show that he has had lawful permanent

status for at least five years, has resided in the United

States for a continuous period of seven years after admission, and that he has not been convicted of an aggravated felony.

The government argued that Familia Rosario’s conviction fell under INA § 101(a)(43)(K)(i), which includes

as an aggravated felony “an offense that relates to the

owning, controlling, managing or supervising of a prostitution business . . . .” The IJ found that Familia Rosario’s 1

predicate conviction was “divisible,” in that it included
6 No. 10-3433

conduct that would fall under INA § 101(a)(43)(K)(i)

and conduct that would not. Using the modified categorical approach, the IJ found that the record of conviction

showed that Familia Rosario was convicted of knowingly

aiding and abetting in a conspiracy to import aliens for

the purpose of prostitution, and that his conviction

thus “relate[d] to” the owning, controlling, managing or

supervising of a prostitution business. The IJ found

Familia Rosario statutorily ineligible for cancellation of

removal, and ordered him removed. Familia Rosario

timely appealed to the Board of Immigration Appeals

(“BIA”), which conducted a de novo review and affirmed

the IJ’s determination that Familia Rosario had been

convicted of an aggravated felony. Rosario filed a timely

petition of review, followed by an emergency stay of

removal during the pendency of this appeal, which

this court granted.

II. ANALYSIS

The question raised in this appeal is whether Familia

Rosario’s conviction constitutes an aggravated felony

under INA § 101(a)(43)(K)(i) such that he is ineligible

for cancellation of removal. This court reviews de novo

the legal question of whether a conviction constitutes

an aggravated felony for purposes of eligibility for cancellation. See Guerrero-Perez v. INS, 242 F.3d 727, 730

(7th Cir. 2001). Where the BIA’s decision adopts and

affirms the IJ’s conclusion as well as providing its own

analysis, we review both decisions. Gaiskov v. Holder,
No. 10-3433 7

This approach has its origins in Taylor v. United States, 495 2

U.S. 575 (1990), in which the Supreme Court considered the

circumstances under which a court could apply a statutory

enhancement to the sentence of a defendant with a prior

conviction for burglary. See 495 U.S. at 578 (considering application of 18 U.S.C. § 924(e), which provides for a sentence

enhancement for a defendant with three previous convictions

for a “violent felony,” defined in part as “any crime . . . [that]

is burglary”); see also United States v. Woods, 576 F.3d 400 (7th

Cir. 2009).

567 F.3d 832, 835 (7th Cir. 2009) (citing Giday v. Gonzales,

434 F.3d 543, 547 (7th Cir. 2006)).

We generally employ a categorical approach to determine whether a conviction constitutes an aggravated

felony. Gaiskov, 567 F.3d at 835-36. In applying the cate- 2

gorical approach in the aggravated felony context, the

court makes a categorical comparison between the

generic crime used in the INA and the elements of each

particular offense of which the noncitizen was convicted. See Gaiskov, 567 F.3d at 835-36; Eke v. Mukasey, 512

F.3d 372, 379-80 (7th Cir. 2008).

However, when the underlying criminal statute proscribes multiple types of conduct, some of which would

constitute an aggravated felony and some of which

would not, courts have employed a “modified categorical

approach.” See Gaiskov, 567 F.3d at 836 n.2. Under this

approach, a judge may examine the record of conviction,

including the terms of a plea agreement, in order to

determine whether the defendant pled guilty to the
8 No. 10-3433

18 U.S.C. § 2 states: 3

(a) Whoever commits an offense against the United States or

aids, abets, counsels, commands, induces or procures its

commission, is punishable as a principal.

(b) Whoever willfully causes an act to be done which if

directly performed by him or another would be an offense

against the United States, is punishable as a principal.

18 U.S.C. § 371 states, in relevant part:

Conspiracy to commit offense or to defraud United States.

If two or more persons conspire either to commit any

offense against the United States, or to defraud the United

States, or any agency thereof in any manner or for any

purpose, and one or more of such persons do any act to

effect the object of the conspiracy, each shall be fined

under this title or imprisoned not more than five years, or

both.

portion of the statute that constitutes an aggravated

felony. Woods, 576 F.3d at 406; see also Gonzazels v. DuenasAlvarez, 549 U.S. 183, 187 (2007); Shepard v. United States,

544 U.S. 13, 16-17 (2005).

Before deciding whether to employ the categorical or

modified categorical approach, we must first resolve the

issue of what the proper statute of conviction is. Familia

Rosario pled guilty to aiding and abetting two or more

who conspired to commit an offense against the United

States in violation of 18 U.S.C. sections 2 and 371. Those 3

statutes, by themselves, would not fall under the aggravated felony provision at issue here, as they have nothing

to do with prostitution. The IJ and BIA instead used as
No. 10-3433 9

The government does not contend, and the IJ and BIA did not 4

address, whether Familia Rosario’s conviction fell under the

“control” language of 8 U.S.C. § 1328.

the predicate conviction 8 U.S.C. § 1328, which the information states, and Familia Rosario concedes, was the

object of the conspiracy that Familia Rosario aided and

abetted. 8 U.S.C. § 1328 states in relevant part:

The importation into the United States of any alien

for the purpose of prostitution, or for any other

immoral purpose, is forbidden. Whoever shall,

directly or indirectly, import, or attempt to

import into the United States any alien for the

purpose of prostitution or for any other immoral

purpose, or shall hold or attempt to hold any alien

for any such purpose in pursuance of such illegal

importation, or shall keep, maintain, control,

support, employ, or harbor in any house or other

place, for the purpose of prostitution or for any

other immoral purpose, any alien, in pursuance

of such illegal importation, shall be fined under

Title 18, or imprisoned not more than 10 years,

or both.

4

Familia Rosario argues that the BIA improperly focused

on the object of the conspiracy rather than his conviction

for aiding and abetting the conspiracy. Using the object

of the conspiracy, Familia Rosario argues, would improperly equate him with a co-conspirator as opposed to

simply an aider and abettor.
10 No. 10-3433

This court has, in the criminal context, acknowledged

a distinction between conspiracy and aiding and abetting

a conspiracy. In United States v. Zafiro, 945 F.2d 881, 884

(7th Cir. 1991), we noted that “[a]t first glance it might

seem odd that there could be . . . separate crimes of conspiracy and of aiding and abetting a conspiracy,” but

then found that the act of aiding and abetting did “not

necessarily” make the aider and abettor a member of the

conspiracy, for example, when the aider and abettor

did not form an agreement with the conspirators, an

essential element for conspiracy liability. We later stated

that, “[a]iding and abetting is not a separate crime,” but

maintained that there is a distinction between aiding

and abetting a conspiracy and participating in a conspiracy, as “the statute enables the government to prosecute those who have knowingly furthered the aims of

the conspiracy but who were not members of the conspiracy.” United States v. Loscalzo, 18 F.3d 374, 383 (7th

Cir. 1994). But as the aiding and abetting statute itself

states, and as we have found, an “aider and abettor of a

substantive offense may be treated as a principal.” Id.

Though not in the conspiracy context, the Supreme

Court has found that the generic term “theft offense” as

used in the aggravated felony provision of the INA includes aiding and abetting theft. Duenas-Alvarez, 549 U.S.

at 187, see also INA § 101(a)(43)(G); 8 U.S.C. § 1101(a)(43)(G)

(including as an aggravated felony “a theft offense (including receipt of stolen property) . . . for which the

term of imprisonment [is] at least one year”). In DuenasAlvarez, the noncitizen was convicted of a California
No. 10-3433 11

state statute that punished the taking of a vehicle, and

included liability for “any person who is a party or an

accessory to or an accomplice in” the statute. Id. at 187.

The Ninth Circuit had found that because one might

“aid” or “abet” a theft without taking or controlling

property, an element of generic theft, “aiding and abetting” theft was not itself a crime that fell within the

generic definition of theft. The Supreme Court reversed.

It found that no jurisdiction made a distinction between

principals and aiders and abettors either present at the

crime or those who help the principal before the criminal event takes place, and, because “criminal law now

uniformly treats those . . . categories alike,” generic theft

covers “aiders and abettors” as well as principals. Id. at

820 (internal quotations omitted). The Court concluded,

therefore, that the criminal activities of aiders and

abettors of a generic theft must themselves fall within

the scope of the term “theft” in the federal aggravated

felony provision. Id.

Some tension exists between Duenas-Alvarez and our

earlier cases in the criminal context that find that one

can aid and abet a conspiracy without forming the agreement required for that conspiracy. To the extent a

conflict exists in the aggravated felony context, it is not

one we must resolve today. Even assuming the proper

statute of conviction at issue is the object of the conspiracy

that was aided and abetted, 8 U.S.C. § 1328, we do not find

that the portion of the statute which related to Familia
12 No. 10-3433

Familia Rosario argues that if the proper inquiry is into the 5

object of the conspiracy under an aiding and abetting theory, the

proper aggravated felony provision at issue would be INA

§ 101(a)(43)(U); 8 U.S.C. 1101(a)(43)(U) (“an attempt or conspiracy to commit an offense described in this paragraph”), and

that the failure to apply the proper provision amounts to

reversible error. Here, the BIA specifically rejected using INA

§ 101(a)(43)(U), finding that the “substantive offense” of aiding

and abetting under 18 U.S.C. § 2 formed the basis of the

alleged aggravated felony, not the offense of conspiracy. The

BIA then proceeded to directly apply INA § 101(a)(43)(K)(i), the

provision regarding an offense that relates to the owning,

controlling, managing, or supervising of a prostitution business. Again, this is not an issue we must resolve, as even

if subsection U were applicable, the government would still

need to prove that the object of the conspiracy “fit[s] within

the particular [substantive] aggravated felony category,” Pierre

v. Holder, 588 F.3d 767, 774 (2d Cir. 2009) (citations and internal

quotation omitted), here, subsection (K)(i), which we find it

cannot do. We take no position on whether the agency’s failure

to properly apply INA § 101(a)(43)(U) in the cancellation of

removal context is by itself reversible error. Nor do we take a

position on whether the government’s failure to properly charge

a noncitizen with removal under INA § 101(a)(43)(U) in a Notice

to Appear, and the Board’s subsequent failure to analyze

removability on that ground would amount to reversible

error or a violation of due process. See, e.g., Pierre, 588 F.3d at

775-76 (finding that INA § 101(a)(43)(U) is not a lesser included offense of INA § 101(a)(43)(M) such that failure to

charge noncitizen with removability under subsection U was

(continued...)

Rosario’s plea amounts to an aggravated felony.5
No. 10-3433 13

(...continued) 5

grounds for reversal, and that sua sponte invocation of subsection U violated noncitizen’s due process rights). 

The government argues that 8 U.S.C. § 1328 is a divisible

statute, in that some conduct proscribed by the statute

amounts to an aggravated felony, while other conduct

does not. The government puts the “importation into

the United States of any alien for the purpose of prostitution” in the aggravated felony side of the dividing line

and the subsequent phrase, “or for any other immoral

purpose,” on the non-aggravated felony side. The IJ

and BIA agreed, and, having found the statute divisible,

looked to the record of conviction. The IJ and BIA then

found that the plea agreement showed that the object of

the conspiracy at issue was to run a prostitution business.

The IJ relied on unpublished BIA opinions that read

section 101(a)(43)(K)(i) broadly. In one of those cases, the

BIA found that a conviction for money laundering with

intent to promote prostitution in violation of 18 U.S.C.

§ 1956(a)(1)(A)(i) related to the owning, controlling,

managing or supervising of a prostitution business

because it was “evident that one who conducts a financial transaction that ‘involves the proceeds’ of prostitution and that is undertaken with the intention of promoting

prostitution has committed an offense that ‘relates to’

the managing of a prostitution business.” In re: Kiet Quan

Ly, 2004 WL 3187286 (BIA 2004) (unpublished). The IJ

found that because Familia Rosario’s assistance was

given to advance the purpose of the conspiracy at issue
14 No. 10-3433

in this case, namely, to run a prostitution business, his

offense “relates to” the owning, controlling, managing or

supervising of a prostitution business. The BIA agreed.

We find that the IJ and BIA’s application of the

modified categorical approach was erroneous, and that

the agency improperly used the approach in this case

to examine specific facts about the conspiracy involved

in Familia Rosario’s conviction. Under the modified

categorical approach, “a judge may examine a limited

set of additional materials . . . to determine the portion of

[the underlying statute] to which the defendant pleaded

guilty.” United States v. Taylor, 644 F.3d 573, 576 (7th Cir.

2011) (emphasis added); United States v. Woods, 576

F.3d 400, 406 (7th Cir. 2009) (“ . . . permissible additional

materials may be consulted only for the purpose of determining under which part of a divisible statute the defendant was charged.”) (emphasis added). The inquiry

should have ended when the IJ and BIA learned that

“prostitution” was involved, and not some “other

immoral purpose.” The modified categorical approach

does not permit examination of the charging instrument

and plea agreement for the purpose of learning the

specific facts of a specific conspiracy, such as the fact

that this specific conspiracy involved a prostitution business, or what the defendant’s specific role was in aiding

and abetting that conspiracy.

The modified categorical approach only applies when

a portion of the purportedly divisible statute itself categorically amounts to an aggravated felony. Here, the IJ

and BIA operated under that assumption without com-
No. 10-3433 15

See, e.g., In re Giuseppe Parlato, 2009 WL 2981757 (BIA 2009) 6

(unpublished); In re Juan Jesus Luna-Perez, 2008 WL 496940 (BIA

2008) (unpublished); In re Miguela de Leon, 2007 WL 2197543 (BIA

2007) (unpublished); In re Kiet Quan Ly, 2004 WL 3187286 (BIA

2004) (unpublished).

paring the statutory elements of the first portion of 8

U.S.C. § 1328 to the offense described in INA

§ 101(a)(43)(K)(i). When conducting that analysis, we

do not find that the portion of 8 U.S.C. § 1328 which

formed the basis of Familio Rosario’s aiding and abetting

plea is “an offense that relates to the owning, controlling,

managing or supervising of a prostitution business” under

INA § 101(a)(43)(K)(i). The BIA has never addressed

this specific question, and has only addressed INA

§ 101(a)(43)(K)(i); 8 U.S.C. § 1101(a)(43)(K)(i) in nonprecedential, unpublished opinions. We are therefore 6

not bound to provide Chevron deference to any of the

BIA’s interpretations of INA § 101(a)(43)(K)(i). See

Arobelidze v. Holder, ___ F.3d ___, 2011 WL 3132459 at *6

(7th Cir. July 27, 2011 (“ . . . non-precedential Board

decisions that do not rely on binding Board precedent are

not afforded Chevron deference.”). Though Skidmore

deference still applies to less formal statements by an

agency, see United States v. Mead Corp., 533 U.S. 218, 234-35

(2001) (citing Skidmore v. Swift & Co., 323 U.S. 134 (1944)),

and non-precedential opinions by the Board fall within

that group, Arobelidze, 2011 WL 3132459, at *6 (citation

omitted), under Skidmore, the Board’s interpretation

is “entitled to respect . . . only to the extent that [it has

the] power to persuade." Id. (citing Bailey v. Pregis Innova-
16 No. 10-3433

tive Packaging, Inc., 600 F.3d 748, 751 (7th Cir. 2010) (quotations omitted)). We do not find the BIA’s interpretation

of INA § 101(a)(43)(K)(i) persuasive.

Admittedly, the term “relates to” has been construed

broadly. The Supreme Court, in interpreting the phrase

“relating to” in the Airline Deregulation Act, observed

that Black’s Law Dictionary defines the words expansively: “ ‘to stand in some relation; to have bearing or

concern; to pertain; refer; to bring into association with

or connection with.’ ” Morales v. Trans World Airlines, Inc.,

504 U.S. 374, 383 (1992) (quoting Black’s Law Dictionary

1158 (5th ed. 1979)). The Second Circuit, in interpreting the aggravated felony provision found in INA

§ 101(a)(43)(R); 8 U.S.C. § 1101(a)(43)(R) (“an offense

relating to . . . forgery”) found that “even if possession of

a forged instrument with intent to defraud, deceive or

injure is not ‘forgery’ as defined at common law, it is

unarguably an offense ‘relating to’ forgery within the

broad construction we have given that term.” Richards

v. Ashcroft, 400 F.3d 125, 129-130 (2d Cir. 2005).

This court has similarly found that the term “ ‘relating to’

is intended to have a broadening effect.” Desai v. Mukasey,

520 F.3d 762, 764 (7th Cir. 2008). In Escobar Barraza v.

Mukasey, 519 F.3d 388, 391 (7th Cir. 2008), we held that

possessing “a pipe for smoking marijuana is a crime

within the scope of § 1182(a)(2)(A)(i)(II) (rendering a

noncitizen inadmissible for violating “any law or regulation . . . relating to a controlled substance”) because drug

paraphernalia relates to the drug with which it is used.”

(Emphasis in original). We have also held that a convic-
No. 10-3433 17

tion for distributing a substance that was designed to

look like a controlled substance and would “lead a reasonable person to believe it to be a controlled substance,” is a

violation of a law “relating to” a controlled substance.

Desai, 520 F.3d at 764-65 (7th Cir. 2008). We held so

because “the idea of distributing a “ ‘. . . Look-Alike’

would not even exist as a legal (or linguistic) concept

without its connection to, or relationship with,” the

actual controlled substance. Id. at 765.

But this is not a case where the INA includes as

an aggravated felony an offense that “relates to prostitution” or even an offense that “relates to a prostitution

business.” The INA requires that the offense relate to

“the owning, controlling, managing or supervising of a

prostitution business.” INA § 101(a)(43)(K)(i); 8 U.S.C.

§ 1101(a)(43)(K)(i) (emphasis added). Those terms are

not defined in the INA, and so we give them their plain,

ordinary meaning. Smith v. United States, 508 U.S. 223, 228

(1993) (“ ‘When a word is not defined by statute, we

normally construe it in accord with its ordinary or

natural meaning.’ ”) (quoting Perrin v. United States, 444

U.S. 37, 42 (1979)). In ordinary usage, to “own” something

is “to have or hold as property or appurtenance.” Webster’s

Third New International Dictionary 1612 (1993). To “control” a thing is “to exercise restraint or direction over;

dominate, regulate, or command.” Webster’s College Dictionary 297 (1991); see also Webster’s New Collegiate

Dictionary 285 (9th ed. 1983) (defining “control” as the

“power or authority to guide or manage”). To “manage” is

“to control and direct,” Webster’s Third New International

Dictionary 1372 (1993), and to “supervise” is to “oversee
18 No. 10-3433

with the powers of direction and decision,” id. at 2296; see

also Webster’s New World Dictionary, 1430 (2d ed. 1974)

(“supervise [means] to oversee, direct, or manage. . .”).

The inclusion of these terms as plainly understood

requires that the underlying offense not simply “stand in

some relation” to or “have bearing or concern” with

prostitution or a prostitution business, but that the

actual statute of conviction “stand in some relation” to or

“have bearing or concern” with some degree of decisionmaking authority or position of power in a prostitution

business.

There are statutes that do just that. Some state

criminal statutes explicitly include ownership, control,

supervision, or management of a prostitution business

as elements of the offense. In New York, for example, a

person would be liable for promoting prostitution in

the third degree, when she knowingly “[a]dvances or

profits from prostitution by managing, supervising, controlling or owning, either alone or in association with others,

a . . . prostitution business or enterprise involving prostitution activity by two or more prostitutes.” New York

Penal Law § 230.25(1) (emphasis added); see also Youshah

v. Staudinger; 604 N.Y.S.2d 479, 480 (N.Y. Sup. Ct.

1993). Connecticut criminalizes the same conduct as

promoting prostitution in the second degree, Conn. Gen.

Stat. § 53a-87(a)(1) (same), as does Delaware, 11 Del. Code

Ann. § 1352 (same), Alabama, Ala. Code 1975 § 13A-12-

112(a)(1) (same), Arkansas, A.C.A. § 5-70-105(a) (same),

and several other states from Maine, 17 Maine Rev. Stat.

§ 851(2)(E), to Hawaii, Haw. Rev. Stat. § 712-1203.
No. 10-3433 19

There are also a number of state statutes that do not

explicitly use the terms “own, control, supervise, or

manage,” but would “relate to” such terms as we ordinarily understand them. For example, Alabama and

Connecticut include in their definition of “advance prostitution” a person who “operates or assists in the operation of a house of prostitution or a prostitution enterprise,” and such a person could be liable for promoting

prostitution in the third degree. Ala. Code 1975 §§ 13A-12-

110; 13A-12-113; Conn. Gen. Stat. §§ 53a-85; 53a-88. In

Arizona, a person “who knowingly operates or maintains a house of prostitution or prostitution enterprise is

guilty of a class 5 felony.” Ariz. Rev. Stat. § 13-3208(B).

We cannot find that the “importation into the United

States of any alien for the purpose of prostitution,” under

8 U.S.C. § 1328, unlike the state statutes discussed above,

categorically “relates to” the ownership, control, supervision, or management of a prostitution business. The

statute, by its very terms, includes conduct that might

have nothing to do with ownership, control, management or supervision of a business. Generally, a conviction under 8 U.S.C. § 1328 would only require proof that

(1) the defendant imported a person into the United

States; (2) that person was an alien; and (3) the defendant

imported the alien for the purpose of having him or her

engage in prostitution. See, e.g., United States v. Mi Kyung

Byun, 539 F.3d 982, 986-87 (9th Cir. 2008). Involvement

in a prostitution business is not an element of the

offense, nor is any “relation to” a position of authority

or power in such a business. Clearly, the statute

certainly can cover conduct that includes the ownership
20 No. 10-3433

and control of a prostitution business, see, e.g., id. at 983

(conviction under 8 U.S.C. § 1328 where “Mi Kyung

Byun and her husband owned and operated a night club . . .

in which female employees could engage in sexual acts

with the club’s clients”) (emphasis added), but that possibility (and actual occurrence) is not sufficient for

finding that 8 U.S.C. § 1328 is categorically an offense

that relates to the owning, controlling, managing or

supervising of a prostitution business.

In addressing a state statute in Duenas-Alvarez, the

Supreme Court concluded that to find that a statute

creates a crime “outside the generic definition of a listed

crime in a federal statute requires more than the application of legal imagination” to the statute’s language.

549 U.S. at 193. The Court stated that there must be

“a realistic probability that the State would apply its

statute to conduct that falls outside the” generic crime

listed in the aggravated felony statute. This is the case

here. 8 U.S.C. § 1328 may encompass the importation of

an alien for purposes of prostitution that is entirely

“personal” in nature. For example, in United States v.

Clark, 582 F.3d 607, 614-15 (5th Cir. 2009), the defendant

paid for a Kenyan woman to travel to the United States,

and then required sex as a repayment, expecting the

woman “to continue prostitution in the United States,

evidently with himself as her sole client.” Id. at 611. Clark

was convicted under 8 U.S.C. § 1328, and while the indictment and jury instructions included both the “prostitution” and the “other immoral purpose” prongs of the

statute, the government’s jury arguments “pointed to

Clark’s importing an alien for purposes of prostitution
No. 10-3433 21

and ‘sexual exploitation,’ ” and the “general verdict

could have been on either basis.” Id. at 612; 615 (emphasis

added). This actual application of the statute takes it out

of the theoretical realm, and shows that the statute encompasses conduct that would not fit within the aggravated felony definition of INA § 101(a)(43)(K)(i); 8 U.S.C.

§ 1101(a)(43)(K)(i).

We are also not convinced that the aggravated felony

provision at issue here invites a “circumstance-specific”

approach that the Supreme Court found applicable in

Nijhawan v. Holder, 129 S. Ct. 2294, 2302 (2009) (finding

circumstance-specific approach appropriate to determine the loss amount under INA § 101(a)(43)(M)(I);

8 U.S.C. § 1101(a)(43)(M)(i), which includes as an aggravated felony “an offense that . . . involves fraud or

deceit in which the loss to the victim or victims exceeds

$10,000”) (emphasis added). Subsection (K)(i), unlike the

provision involved in Nijhawan, does not include any

language such as “in which” that would indicate a

need to peer into the conduct involved or the specific goal

or circumstances of the conspiracy at issue; it only

requires that the “offense” relate to the owning, controlling, managing or supervising of a prostitution business, a question the court is able to answer without resorting to the facts.

However, we note that the Court in Duenas-Alvarez

also stated that to show a “realistic probability” that a

statute creates a crime outside the generic definition of

a listed crime in the aggravated felony provision, “an

offender, of course, may show that the statute was

so applied in his own case.” 549 U.S. at 193. While the
22 No. 10-3433

plea agreement showed that Familia Rosario had knowledge of the object of the conspiracy and aided and

abetted that conspiracy, it stretches the bounds of logic

to suggest that his conduct, distributing condoms, was

conduct that “related to” the owning, controlling, managing or supervising of a prostitution business. The government itself agreed to a minor role reduction at sentencing, but now argues that Familia Rosario’s actions

were “essential” to the operation of the business, and

thus “relate to” the owning, controlling, managing or

supervising of the businesses at issue. While condoms

are mandatory for the operation of prostitution businesses in some jurisdictions, see, e.g., Nev. Admin. Code

ch. 441A, § 805 (2003), and are certainly “essential” in

the sense that their use among commercial sex workers

has proven to help stem the spread of HIV and other

diseases, see, e.g., Sean C. Clark, Never In A Vacuum: Learning from the Thai Fight Against HIV, 13 Wm. & Mary J.

Women & L. 593 (2007), we note that there was no regulation requiring their use in this case, and that the business of prostitution has historically been able to be managed, owned, controlled and supervised without such

precautions.

Therefore, we find that the portion of 8 U.S.C. § 1328,

which prohibits the “importation into the United States

of any alien for the purpose of prostitution,” is not categorically an “offense that relates to the owning, controlling, managing or supervising of a prostitution business,” and is therefore not an aggravated felony under

INA § 101(a)(43)(K)(i); 8 U.S.C. § 1101(a)(43)(K)(i). The

IJ and BIA erred in their use and application of the modified categorical approach.
No. 10-3433 23

III. CONCLUSION

We GRANT Familia Rosario’s petition for review, VACATE

the order of removal, and REMAND to the agency

for consideration of his application for cancellation of

removal.

8-24-11