Rosario v. Holder

• Decision Date: 24 August 2011
• Docket Number: No. 10–3433.,10–3433.
• Citation: 655 F.3d 739
• Parties: Manuel de Jesus FAMILIA ROSARIO, Petitioner,v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

655 F.3d 739

Manuel de Jesus FAMILIA ROSARIO, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 10–3433.

United States Court of Appeals, Seventh Circuit.

Argued June 10, 2011.Decided Aug. 24, 2011.

Garrett A. Levin (argued), Attorney, Jenner & Block LLP, Washington, DC, Charles Roth, Attorney, National Immigrant Justice Center, Chicago, IL, for Petitioner.Genevieve Holm, Sabatino F. Leo (argued), OIL, Attorneys, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.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 single-count 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.” 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 determination 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 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 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....” ¹ The IJ found that Familia Rosario's predicate conviction was “divisible,” in that it included 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, 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. ² In applying the categorical 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 portion of the statute that constitutes an aggravated felony. Woods, 576 F.3d at 406; see also Gonzales v. Duenas–Alvarez, 549 U.S. 183, 187, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007); Shepard v. United States, 544 U.S. 13, 16–17, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005).

Before deciding whether to employ the categorical or modified categorical approach, we must first resolve the issue of what the proper...