Kepilino v. Gonzales
| Decision Date | 25 July 2006 |
| Docket Number | No. 04-71926.,04-71926. |
| Parties | Young Ok KEPILINO, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Gary G. Singh, Honolulu, HI, for the petitioner.
Blair T. O'Connor, (argued), Deputy Attorney General, and Anthony W. Norwood, (briefed), Deputy Attorney General, Washington, D.C., for the respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A76-599-298.
Before BETTY B. FLETCHER, HARRY PREGERSON, and CYNTHIA HOLCOMB HALL, Circuit Judges.
Petitioner Young Ok Kepilino appeals the Board of Immigration Appeals's ("BIA") summary affirmance of the Immigration Judge's ("IJ") decision finding Kepilino inadmissible under section 212(a)(2)(D)(i) of the Immigration and Nationality Act ("INA") (codified at 8 U.S.C. § 1182(a)(2)(D)(i)). The IJ held that Kepilino's 1999 prostitution conviction under Hawaii Revised Statute ("H.R.S.") section 712-1200 rendered her inadmissible under section 212(a)(2)(D)(i) of the INA, which renders inadmissible any alien who "is coming to the United States solely, principally, or incidentally to engage in prostitution, or has engaged in prostitution within 10 years of the date of application for a visa, admission, or adjustment of status." 8 U.S.C. § 1182(a)(2)(D)(i). Kepilino contends that her Hawaii prostitution conviction does not trigger section 212(a)(2)(D)(i) because Hawaii's definition of prostitution is overly broad and "has gone far beyond the well-accepted and understood meaning of prostitution." This issue is one of first impression in the Ninth Circuit.
We have jurisdiction under 8 U.S.C. § 1252. Because we agree with Kepilino that Hawaii's definition of prostitution encompasses acts outside the scope of section 212(a)(2)(D)(i), we grant Kepilino's petition.
Kepilino is a native and citizen of South Korea. She first entered the United States as a visitor for pleasure on or about November 4, 1996. Kepilino married a U.S. citizen and adjusted her status on July 8, 1998. She received a temporary Form I-551 resident alien card valid from July 8, 1998, through January 31, 2004. On January 7, 1999, Kepilino was arrested and charged with practicing massage without a license under H.R.S. section 425-0015 and prostitution under H.R.S. section 712-1200. On March 2, 1999, Kepilino pleaded no contest to both charges.
On December 8, 2002, Kepilino arrived at the Honolulu International Airport after a brief trip to South Korea to visit her ailing father. She applied for admission as a returning temporary resident alien. Kepilino was interviewed on arrival and admitted that she had been convicted of prostitution under H.R.S. section 712-1200. The Department of Homeland Security did not admit Kepilino but instead charged her with being inadmissible under section 212(a)(2)(D)(i) of the INA as an alien coming to the United States to engage in prostitution or who has engaged in prostitution within ten years of application.
On June 13, 2003, an IJ found Kepilino inadmissible based on her 1999 Hawaii state conviction for prostitution. The IJ noted that the INA does not provide a definition of "prostitution" but found that a conviction under the Hawaii statute was sufficient to establish that Kepilino was inadmissible under section 212(a)(2)(D)(i) and ordered that she be removed to South Korea.1 On March 29, 2004, the BIA affirmed the IJ without opinion.
We review de novo whether a state law conviction renders an alien inadmissible under federal immigration law. See Lara-Cazares v. Gonzales, 408 F.3d 1217, 1219 (9th Cir.2005). When, as here, the BIA affirms the IJ's decision without opinion, we review the IJ's decision as the final agency action. See Altamirano v. Gonzales, 427 F.3d 586, 591 (9th Cir.2005). We "review purely legal questions concerning the meaning of the immigration laws de novo." Lagandaon v. Ashcroft, 383 F.3d 983, 987 (9th Cir.2004). As Kepilino offers no objections to the IJ's findings of fact, this case presents a legal question that we review de novo. See Shivaraman v. Ashcroft, 360 F.3d 1142, 1145 (9th Cir.2004).
Kepilino's possession of a valid Korean passport and immigrant visa issued by South Korea is prima facie evidence that Kepilino is admissible to the United States. See Pazcoguin v. Radcliffe, 292 F.3d 1209, 1212 (9th Cir.2002). In light of this evidence, the burden shifted to the Government to produce "some evidence" to show that she was not admissible. Id. at 1213. The IJ found that the Government met this burden by offering proof of Kepilino's conviction under H.R.S. section 712-1200. Accordingly, the burden of production shifted back to Kepilino for her to prove "clearly and beyond doubt" that she is entitled to be admitted and is not inadmissible under section 212(a)(2)(D)(i). Toro-Romero v. Ashcroft, 382 F.3d 930, 936 (9th Cir.2004). For the reasons set forth below, we find that the evidence shows "clearly and beyond doubt" that Kepilino is not inadmissible under section 212(a)(2)(D)(i).
Section 212(a)(2)(D)(i) of the INA renders inadmissible any alien who "is coming to the United States solely, principally, or incidentally to engage in prostitution, or has engaged in prostitution within 10 years of the date of application for a visa, admission, or adjustment of status." 8 U.S.C. § 1182(a)(2)(D)(i). Hawaii law provides that a "person commits the offense of prostitution if the person engages in, or agrees or offers to engage in, sexual conduct with another person for a fee." Haw.Rev.Stat. § 712-1200(1). The statute further states that "[a]s used in subsection (1), `sexual conduct' means `sexual penetration,' `deviate sexual intercourse,' or `sexual contact,' as those terms are defined in section 707-700." Haw.Rev.Stat. § 712-1200(2). Section 707-700 provides additional definitions:
"Deviate sexual intercourse" means any act of sexual gratification between a person and an animal or a corpse, involving the sex organs of one and the mouth, anus, or sex organs of the other.
"Sexual contact" means any touching, other than acts of "sexual penetration," of the sexual or other intimate parts of a person not married to the actor, or of the sexual or other intimate parts of the actor by the person, whether directly or through the clothing or other material intended to cover the sexual or other intimate parts.
"Sexual penetration" means:
(1) Vaginal intercourse, anal intercourse, fellatio, deviate sexual intercourse, or any intrusion of any part of a person's body or of any object into the genital or anal opening of another person's body; it occurs upon any penetration, however slight, but emission is not required; or
(2) Cunnilingus or anilingus, whether or not actual penetration has occurred.
Kepilino contends that her state conviction for prostitution does not render her inadmissible under section 212(a)(2)(D)(i) because Hawaii's definition of prostitution "has gone far beyond the well-accepted and understood meaning of prostitution." She does not challenge the "fee" component of section 712-1200 but asserts that the definition of "prostitution" should be limited to acts including "sexual penetration." Kepilino contends that section 712-1200 is impermissibly broad because it criminalizes not only intercourse, fellatio, and masturbation, but also the touching of another's intimate parts, even if the touching occurs through clothing.
To determine whether a specific crime falls within a particular category of inadmissible predicate crimes, we apply the categorical approach set forth in Taylor v. United States, 495 U.S. 575, 576, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and focus narrowly on the elements of the crime as defined by its statutory language. See Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1017 (9th Cir.2005); United States v. M.C.E., 232 F.3d 1252, 1255 (9th Cir.2000). In so doing, we "look solely to the statutory definition of the crime, not to the name given to the offense or to the underlying circumstances of the predicate conviction." United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir.1999). Thus, the issue here is not whether Kepilino's actual conduct constituted prostitution but, rather, whether the full range of conduct encompassed by the Hawaii statute would qualify as a crime of prostitution for purposes of the INA. See Cuevas-Gaspar, 430 F.3d at 1018.
Both parties agree that the INA does not define the term "prostitution." However, the State Department has defined "prostitution" specifically for the purposes of section 212(a)(2)(D)(i) as "engaging in promiscuous sexual intercourse for hire." 22 C.F.R. § 40.24(b) (emphasis added); see also 3A C.J.S. Aliens § 1166 (2005). Because section 712-1200 criminalizes conduct that does not necessarily involve sexual intercourse—including the mere touching of the intimate parts of another through clothing—we find that Hawaii's statute is much broader than the Code of Federal Regulations definition ("C.F.R.").2
Further, as mentioned above, the C.F.R. defines "prostitution" as "engaging in promiscuous sexual intercourse for hire." 22 C.F.R. § 40.24(b) (emphasis added). The C.F.R. definition further states that
finding that an alien has "engaged" in prostitution must be based on elements of continuity and regularity, indicating a pattern of behavior or deliberate course of conduct entered into primarily for financial gain or for other considerations of material value as distinguished from the commission of casual or isolated acts.
22 C.F.R. § 40.24(b) (emphasis added); see also 3A C.J.S. Aliens § 1166 (2005). In this case,...
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