In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3433
M ANUEL DE JESUS F AMILIA R OSARIO ,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A046-778-586
A RGUED JUNE 10, 2011—D ECIDED A UGUST 24, 2011
Before B AUER, F LAUM, and W ILLIAMS, Circuit Judges.
W ILLIAMS, 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 “importa-
tion 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 gov-
ernment conceded that Rosario was “a minor partici-
pant” and agreed to a two-level reduction in the calcula-
tion of his base offense level. In November of 2009, judg-
ment was entered and Familia Rosario was sentenced
to time served.
The government commenced removal proceedings in
early 2010 on the grounds that Familia Rosario commit-
ted 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 con-
ceded 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 aggra-
vated felony. Though not charged with removability
based on a conviction of an aggravated felony, the gov-
ernment 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 Immi-
gration 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, man-
aging or supervising of a prostitution business,” INA
§ 101(a)(43)(K)(i), we find that Familia Rosario’s convic-
tion 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 infor-
mation, 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 (conspir-
acy 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 agree-
ment 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 under-
standing to commit an offense against the United
States, namely to run a prostitution operation in
the State of Minnesota using women from other coun-
tries and states.
b. With knowledge of the existence and purpose of
the conspiracy, the defendant voluntarily and inten-
tionally aided and abetted the conspiracy.
c. In furtherance of the conspiracy, the defendant
distributed condoms or “chocolates” to various broth-
els for the purposes of prostitution.
The plea agreement also stated that the “government
agrees that the defendant’s offense level should be de-
creased 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
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 can-
cellation of removal under INA § 240A(a).
Because Familia Rosario conceded removability under
INA § 212(a)(2)(A)(i)(I) for a crime involving moral turpi-
tude, the IJ determined that removability was estab-
lished and did not reach removability under INA
§ 212(a)(2)(D)(ii), relating to the procurement of prosti-
tutes. 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 ad-
mission, and that he has not been convicted of an ag-
gravated felony.
The government argued that Familia Rosario’s convic-
tion 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 prosti-
tution business . . . .” 1 The IJ found that Familia Rosario’s
predicate conviction was “divisible,” in that it included
1
This provision is also found at 8 U.S.C. § 1101(a)(43)(K)(i).
Unless otherwise noted, we shall only cite to the corresponding
provision of the Immigration and Nationality Act.
6 No. 10-3433
conduct that would fall under INA § 101(a)(43)(K)(i)
and conduct that would not. Using the modified categori-
cal 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 can-
cellation. 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
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 deter-
mine whether a conviction constitutes an aggravated
felony. Gaiskov, 567 F.3d at 835-36.2 In applying the cate-
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 con-
victed. 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 pro-
scribes 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
2
This approach has its origins in Taylor v. United States, 495
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 ap-
plication 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).
8 No. 10-3433
portion of the statute that constitutes an aggravated
felony. Woods, 576 F.3d at 406; see also Gonzazels v. Duenas-
Alvarez, 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 371.3 Those
statutes, by themselves, would not fall under the aggra-
vated felony provision at issue here, as they have nothing
to do with prostitution. The IJ and BIA instead used as
3
18 U.S.C. § 2 states:
(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.
No. 10-3433 9
the predicate conviction 8 U.S.C. § 1328, which the infor-
mation 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 improp-
erly equate him with a co-conspirator as opposed to
simply an aider and abettor.
4
The government does not contend, and the IJ and BIA did not
address, whether Familia Rosario’s conviction fell under the
“control” language of 8 U.S.C. § 1328.
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 con-
spiracy 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 con-
spiracy, as “the statute enables the government to prose-
cute those who have knowingly furthered the aims of
the conspiracy but who were not members of the con-
spiracy.” 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 in-
cludes 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 (in-
cluding receipt of stolen property) . . . for which the
term of imprisonment [is] at least one year”). In Duenas-
Alvarez, 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 abet-
ting” 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 crim-
inal 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 agree-
ment 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
Rosario’s plea amounts to an aggravated felony.5
5
Familia Rosario argues that if the proper inquiry is into the
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 con-
spiracy 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 busi-
ness. 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 in-
cluded offense of INA § 101(a)(43)(M) such that failure to
charge noncitizen with removability under subsection U was
(continued...)
No. 10-3433 13
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 prosti-
tution” 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 finan-
cial transaction that ‘involves the proceeds’ of prostitu-
tion 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
5
(...continued)
grounds for reversal, and that sua sponte invocation of subsec-
tion U violated noncitizen’s due process rights).
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 deter-
mining under which part of a divisible statute the de-
fendant 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 busi-
ness, 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 cate-
gorically amounts to an aggravated felony. Here, the IJ
and BIA operated under that assumption without com-
No. 10-3433 15
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 non-
precedential, unpublished opinions.6 We are therefore
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-
6
See, e.g., In re Giuseppe Parlato, 2009 WL 2981757 (BIA 2009)
(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).
16 No. 10-3433
tive Packaging, Inc., 600 F.3d 748, 751 (7th Cir. 2010) (quota-
tions 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 ex-
pansively: “ ‘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 inter-
preting 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 regula-
tion . . . 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 reason-
able 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 prostitu-
tion” 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 “con-
trol” a thing is “to exercise restraint or direction over;
dominate, regulate, or command.” Webster’s College Dic-
tionary 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 decision-
making 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, control-
ling or owning, either alone or in association with others,
a . . . prostitution business or enterprise involving prosti-
tution 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 ordi-
narily understand them. For example, Alabama and
Connecticut include in their definition of “advance prosti-
tution” a person who “operates or assists in the opera-
tion of a house of prostitution or a prostitution enter-
prise,” 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 main-
tains 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, supervi-
sion, or management of a prostitution business. The
statute, by its very terms, includes conduct that might
have nothing to do with ownership, control, manage-
ment or supervision of a business. Generally, a convic-
tion 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 possi-
bility (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 applica-
tion 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 in-
dictment and jury instructions included both the “prosti-
tution” 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 en-
compasses conduct that would not fit within the aggra-
vated 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 deter-
mine the loss amount under INA § 101(a)(43)(M)(I);
8 U.S.C. § 1101(a)(43)(M)(i), which includes as an ag-
gravated 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, con-
trolling, managing or supervising of a prostitution busi-
ness, a question the court is able to answer without re-
sorting 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 knowl-
edge 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, manag-
ing or supervising of a prostitution business. The gov-
ernment itself agreed to a minor role reduction at sen-
tencing, 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 busi-
nesses 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: Learn-
ing from the Thai Fight Against HIV, 13 Wm. & Mary J.
Women & L. 593 (2007), we note that there was no reg-
ulation requiring their use in this case, and that the busi-
ness of prostitution has historically been able to be man-
aged, 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 cate-
gorically an “offense that relates to the owning, con-
trolling, managing or supervising of a prostitution busi-
ness,” 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 modi-
fied categorical approach.
No. 10-3433 23
III. CONCLUSION
We G RANT Familia Rosario’s petition for review, V ACATE
the order of removal, and R EMAND to the agency
for consideration of his application for cancellation of
removal.
8-24-11