PC 266

PC 266

Offense

Pimping and pandering

Aggravated Felony (AF)

Likely charged as AF. See Advice.

Crime Involving Moral Turpitude (CIMT)

Yes CIMT

Other Removal Grounds

Deportable child abuse if ROC shows person under age 18; plead to the second clause that is not age specific.
Adam Walsh Act. When V is a minor, conviction can prevent a USC or LPR from immigrating family members in the future. See § N.13 Convictions that Bar the Defendant from Petitioning for Family Members: the Adam Walsh Act.

Advice and Comments

AF: This statute covers a range of conduct.

To prevent an AF as sexual abuse of a minor, plead specifically to conduct with persons age 18 or over.

To try to prevent AF as “owning or managing a prostitution business,” plead to attempting to persuade one adult to engage in carnal relations, but this remains a very dangerous plea.1Regarding the aggravated felony sexual abuse of a minor (SAM), if Pen C § 266 is found to be divisible among the types of conduct, a record of conviction that states that the person recruited was over the age of 18 will prevent the offense from being held an aggravated felony as SAM. If the statute is not divisible, no conviction is SAM, regardless of information in the record of conviction. See explanation of the categorical approach at n. 4, above.

An additional aggravated felony is 8 USC § 1101(a)(43)(K)(i), relating to the “owning, controlling, managing or supervising a prostitution business.” More research is required to determine if Pen C § 266 would meet the definition. Immigration advocates may argue that § 266 is overbroad for this purpose, because it includes trying to encourage a single person to become a prostitute. People v. Zambia (2011) 51 Cal.4th 965. Arguably arranging or trying to arrange a single encounter (and with no element of financial benefit to the arranger) does not rise to the level of managing a prostitution business. Defenders should conservatively assume it is an aggravated felony. However, even if commercial benefit is not an element of Pen C 266, immigration officers can prove there was a commercial element using evidence from outside the record of conviction under the circumstance specific approach. See n. 4, above.

The defense that this offense is not an aggravated felony because it involves procuring persons for lewd acts, as opposed to solely for sexual intercourse, is not secure. For inadmissibility purposes, “prostitution” is defined as “engaging in promiscuous sexual intercourse for hire,” not lewd conduct for hire. 22 C.F.R. § 40.24(b). See Matter of Ding, 27 I&N Dec. 295 (BIA 2018). Courts have applied the same requirement of sexual intercourse to the aggravated felony, 8 USC § 1101(a)(43)(K)(i), relating to the “owning, controlling, managing or supervising a prostitution business.” See, e.g., DePasquale v. Gonzales, 196 Fed.Appx. 580, 582 (9th Cir. 2006) (unpublished) (prostitution under Hawaiian law); Prus v. Holder, 660 F.3d 144, 146-147 (2d Cir. 2011) (New York offense); see also Familia Rosario v. Holder, 655 F.3d 739, 745-46 (7th Cir. 2011) (government, IJ and BIA agree that importation of persons for purposes of prostitution is an aggravated felony under 8 USC § 1101(a)(43)(K)(i), while importation for other immoral purposes is not).

However, in Ding, above, the BIA distinguished the definition of prostitution for the purposes of the inadmissibility ground and the aggravated felony under 1101(a)(43)(K)(i). For the purposes of the aggravated felony, prostitution is defined as “sexual conduct in exchange for something of value.” The Ninth Circuit might decide to accept this definition.

2020-10-23T20:14:03+00:00Updated January 29th, 2020|