Kepilino v. Gonzales

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

YOUNG OK KEPILINO, 
Petitioner, No. 04-71926
v.
 Agency No.
A76-599-298
ALBERTO R. GONZALES, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
June 16, 2006—Honolulu, Hawaii

Filed July 25, 2006

Before: Betty B. Fletcher, Harry Pregerson, and
Cynthia Holcomb Hall, Circuit Judges.

Opinion by Judge Pregerson

8335
 KEPILINO v. GONZALES 8337

COUNSEL

Gary S. Singh, Honolulu, Hawaii, 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.
8338 KEPILINO v. GONZALES
OPINION

PREGERSON, Circuit Judge:

Petitioner Young Ok Kepilino appeals the Board of Immi-
gration Appeals’s (“BIA”) summary affirmance of the Immi-
gration Judge’s (“IJ”) decision finding Kepilino inadmissible
under section 212(a)(2)(D)(i) of the Immigration and Nation-
ality 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.

I. Factual and Procedural Background

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
 KEPILINO v. GONZALES 8339
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 prostitu-
tion 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 “prostitu-
tion” 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.

II. Standard of Review

We review de novo whether a state law conviction renders
an alien inadmissible under federal immigration law. See
1
The IJ also noted that there was no alternative relief available to
Kepilino:
[Kepilino] does not have sufficient time as a permanent resident
to qualify for cancellation of removal for certain permanent resi-
dents, since she only became a permanent resident on July 8,
1998. [Kepilino] does not have a visa petition, and appears not
to be qualified for a Section 212(f) waiver of inadmissibility for
lack of sufficient time of seven years. [Kepilino] does not have
any fear of returning to her homeland, and has not filed an appli-
cation for asylum. [Kepilino] has not applied for naturalization.
8340 KEPILINO v. GONZALES
Lara-Cazares v. Gonzales, 408 F.3d 1217, 1219 (9th Cir.
2005). When, as here, the BIA affirms the IJ’s decision with-
out 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 pre-
sents a legal question that we review de novo. See Shivara-
man v. Ashcroft, 360 F.3d 1142, 1145 (9th Cir. 2004).

III. Burden of Production

Kepilino’s possession of a valid Korean passport and immi-
grant 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).

IV. Kepilino’s Prostitution Conviction Under H.R.S.
Section 712-1200 Is Not a Removable Offense Under
Section 212(a)(2)(D)(i) of the INA

Section 212(a)(2)(D)(i) of the INA renders inadmissible
any alien who “is coming to the United States solely, princi-
pally, 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.
 KEPILINO v. GONZALES 8341
§ 1182(a)(2)(D)(i). Hawaii law provides that a “person com-
mits the offense of prostitution if the person engages in, or
agrees or offers to engage in, sexual conduct with another per-
son for a fee.” Haw. Rev. Stat. § 712-1200(1). The statute fur-
ther 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 pro-
vides 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 inti-
mate 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 per-
son’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.

Haw. Rev. Stat. § 707-700.

Kepilino contends that her state conviction for prostitution
does not render her inadmissible under section 212(a)(2)(D)(i)
8342 KEPILINO v. GONZALES
because Hawaii’s definition of prostitution “has gone far
beyond the well-accepted and understood meaning of prosti-
tution.” She does not challenge the “fee” component of sec-
tion 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.

A. Categorical Approach

[1] 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 (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 underly-
ing 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 consti-
tuted prostitution but, rather, whether the full range of con-
duct 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.

[2] 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 inter-
course 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 inti-
mate parts of another through clothing — we find that
 KEPILINO v. GONZALES 8343
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 “prostitu-
tion” 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 regular-
ity, 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 iso-
lated acts.
2
When reviewing an agency’s construction of a statute, we apply the
two-part test set forth in Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984). First, we must examine the
statute itself to determine whether Congress has spoken directly to the pre-
cise question. See id. at 842. “If the intent of Congress is clear, that is the
end of the matter; for the court, as well as the agency, must give effect to
the unambiguously expressed intent of Congress.” Id. at 842-43. If not,
and the statute is ambiguous as to the precise question at issue, “we defer
at step two to the agency’s interpretation so long as the construction is ‘a
reasonable policy choice for the agency to make.’ ” Nat’l Cable & Tele-
comms. Ass’n v. Brand X Internet Servs., 125 S. Ct. 2688, 2702-12 (2005)
(quoting Chevron, 467 U.S. at 845).
Because the text of section 212(a)(2)(D)(i) does not provide a definition
for “prostitution,” and therefore Congress’s intent is ambiguous, we must
look to agency interpretation for a reasonable interpretation. Id. Here, the
definition of “prostitution,” which applies specifically to section
212(a)(2)(D), is found in the C.F.R. See 22 C.F.R. § 40.24(a). Interpreta-
tions of statutes in the C.F.R. are “promulgated in accordance with the
procedural requirements imposed by Congress for the creation of binding
regulations,” are “intended to be binding,” and are entitled to Chevron def-
erence by a reviewing court. Moore v. Apfel, 216 F.3d 864, 869 (9th Cir.
2000). Because the C.F.R.’s definition was “promulgated in accordance
with procedural requirements imposed by Congress,” id., and appears to
be a reasonable interpretation, we accord deference to the C.F.R.’s defini-
tion of “prostitution” and our Chevron analysis ends.
8344 KEPILINO v. GONZALES
22 C.F.R. § 40.24(b) (emphasis added); see also 3A C.J.S.
Aliens § 1166 (2005). In this case, Kepilino was charged and
convicted of one count of prostitution under Hawaii law,
which criminalizes — stated most simply — “sexual conduct”
for a fee. Haw. Rev. Stat. § 712-1200(1). Because Hawaii’s
statute criminalizes “any” act of sexual conduct and does not
require that the alien engaged in a pattern of sexual conduct,
Hawaii’s statute is much broader than the C.F.R.’s definition.

[3] Hawaii’s statute is overly broad because it criminalizes
an isolated act of conduct that does not necessarily involve
sexual intercourse. Therefore, Kepilino’s offense does not
constitute “prostitution” under the categorical approach.

B. Modified Categorical Approach

[4] Because the statute of conviction is categorically
broader than the State Department’s definition of the crime,
we next employ the modified categorical approach, which
requires that we “look beyond the language of the statute to
a narrow, specified set of documents that are part of the
record of conviction, including the indictment, the judgment
of conviction, jury instructions, a signed guilty plea, or the
transcript from the plea proceedings.” Tokatly v. Ashcroft, 371
F.3d 613, 620 (9th Cir. 2004) (internal quotation omitted); cf.
Carty v. Ashcroft, 395 F.3d 1081, 1084 (9th Cir. 2005)
(“When a statute is divisible into several crimes, some of
which may involve moral turpitude and some not, it is appro-
priate to examine the ‘record of conviction’ to determine
which part applies to the defendant.”).

[5] We do not, however, “look beyond the record of con-
viction itself to the particular facts underlying the conviction.”
Tokatly, 371 F.3d at 620 (citing Taylor, 495 U.S. at 600). The
Supreme Court has clarified that, in determining whether a
conviction establishes that a defendant was convicted of the
generally defined offense, our inquiry is limited “to the terms
of the charging document, the terms of a plea agreement or
 KEPILINO v. GONZALES 8345
transcript of colloquy between judge and defendant in which
the factual basis for the plea was confirmed by the defendant,
or to some comparable judicial record of this information.”
Shepard v. United States, 544 U.S. 13, 26 (2005) (reaffirming
that, under the modified categorical approach, the court can
only consider facts that are necessarily admitted in the plea);
see also United States v. Lopez-Montanez, 421 F.3d 926, 931
(9th Cir. 2005). The record must “unequivocally” establish
that the defendant was convicted of the crime. United States
v. Smith, 390 F.3d 661, 664 (9th Cir. 2004). Therefore, we
must determine whether the record of conviction demon-
strates that Kepilino was convicted of the general elements
that constitute prostitution under the definition contained in
22 C.F.R. § 40.24(b).

The record shows that Kepilino was convicted after she
pleaded no contest to one charge of prostitution. The adminis-
trative record contains the following documents: (1) a copy of
the criminal trial court’s calendar for March 2, 1999; and (2)
Kepilino’s public “Rap” sheet. Each of these fall within the
record of conviction.

[6] The first document states that Kepilino waived a read-
ing of the charge and pleaded no contest. She was adjudged
guilty and fined $500. The second document contains similar
information. It states that Kepilino was found guilty of prosti-
tution — a petty misdemeanor — on March 2, 1999, and
given a $500 fine. Neither document contains any detail of the
“sexual conduct” or any usable information about the factual
basis for Kepilino’s conviction.

[7] In addition, because there are no factual details about
Kepilino’s conviction in the record of conviction, the record
does not establish that Kepilino was convicted of engaging in
a regular pattern of prostitution as defined by 22 C.F.R.
§ 40.24(b). As far as we can tell, Kepilino does not have a his-
tory of prostitution convictions, and neither party contends
that Kepilino engaged in anything more than one isolated act.
8346 KEPILINO v. GONZALES
[8] The record of conviction does not establish the factual
basis for Kepilino’s no contest plea or support a finding that
Kepilino “engaged” in prostitution as defined by the code.
Consequently, neither document establishes that Kepilino’s
conduct falls within the C.F.R.’s definition of “prostitution.”
Accordingly, we find that Kepilino’s offense was not a crime
of prostitution under the modified categorical approach.

V. Conclusion

For the reasons set forth above, we grant the petition and
reverse the IJ’s finding that Kepilino’s prostitution conviction
under H.R.S. section 712-1200 rendered her inadmissible
under section 212(a)(2)(D)(i) of the INA.

PETITION GRANTED.