Keeping or residing in a place of prostitution or lewdness
Aggravated Felony (AF)
Should be either divisible or not an AF but use caution and see Advice.
If pleading to this offense, plead specifically to “residing.”
Crime Involving Moral Turpitude (CIMT)
BIA held it is a CIMT, but advocates may have strong argument against this. See Advice.
Other Removal Grounds
See Advice for discussion of inadmissible for engaging in prostitution. See also PC 370
Advice and Comments
AF: Owning or controlling a prostitution business is an AF per 8 USC 1101(a) (43)(K)(i), while being a prostitute is not. Because 315 punishes sex workers (as opposed to managers) and can involve mere residency by a non-sex worker, it should be held either divisible as, or never, an AF. But this cd be wrongly charged as an AF and an unrepresented D would not know how to defend.1The definition of aggravated felony “relating to prostitution” is defined as owning or controlling a prostitution business. 8 USC § 1101(a)(43)(K)(i). Merely working as a prostitute does not come within the definition. Section § 315 “keeping or residing in house of ill-fame,” reaches the sex workers. See People v. Pangelina (1981) 117 Cal. App. 3d 414. It also reaches non-prostitutes who reside in the house. See Cartwright v. Board of Chiropractic Examiners, supra. This ought to distinguish this offense from a Wisconsin Statute, 944.34(1), that the BIA held is categorically an AF because it reached only persons who keep or grant use of a place of prostitution. Matter of Ding, 27 I&N Dec 295 (BIA 2018). Note that in Ding the BIA held that for purposes of § 1101(a)(43)(K)(i), prostitution is defined to include a lewd act in exchange for value and is not limited to sexual intercourse.
CIMT: Old BIA decision held 315 is a CIMT, but it did not consider the fact that merely residing (which includes residency by a non-sex worker) should not be a CIMT.2In Matter of P–, 3 I&N Dec. 20 (BIA 1947), the BIA held that a conviction under Pen C § 315 for keeping a house of ill fame is a CIMT. However, it did not consider that § 315 covers simply renting living space in a house of ill fame, which arguably is not a CIMT. See Cartwright v. Board of Chiropractic Examiners, 16 Cal. 3d 762, 768 (Cal. 1976) (“Thus, conviction of violating section 315 does not necessarily require proof of personal or entrepreneurial participation in illicit sexual activities. Instead, the conviction can be based on circumstances of personal residence wholly unrelated to chiropractic practice and only peripherally related to prostitution. Such a conviction would not demonstrate professional unfitness on account of baseness, vileness or depravity.”) As a state case this does not control as to the issue of whether the offense is a CIMT for moral turpitude purposes but does control in its characterization of the elements of the offense. But an unrepresented D may not be able to raise this.
While 315 should not be divisible, best practice is a specific plea to residing. See also PC 370.
Inadmissible for engaging prostitution: A person is inadmissible who engaged in or received proceeds from prostitution within the last 10 years or plans to now. Prostitution is defined as sexual intercourse (not merely a lewd act) for a fee. No conviction is required. See PC 647(b). Conviction under an overbroad statute like this alone does not prove inadmissibility for prostitution,3The State Department defines prostitution for the inadmissibility ground as “engaging in promiscuous sexual intercourse for hire.” 22 C.F.R. § 40.24(b), discussing 8 USC § 1182(a)(2)(D)(i). Courts have adopted that definition for the inadmissibility ground (see Kepilino v. Gonzales, 454 F.3d 1057 (9th Cir. 2006)). They also had applied it to the aggravated felonies that involve prostitution, e.g. 8 USC § 1101(a)(43)(K)(i). See, e.g., DePasquale v. Gonzales, 196 Fed.Appx. 580, 582 (9th Cir. 2006) (unpublished) (prostitution under Hawaiian law divisible because includes lewd acts); Prus v. Holder, 660 F.3d 144, 146-147 (2d Cir. 2011) (same for New York offense of promoting prostitution in the third degree); see also Familia Rosario v. Holder, 655 F.3d 739, 745-46 (government, IJ and BIA agreeing that under 8 USC § 1328 importation of persons for the purposes of prostitution is an aggravated felony while importation for other immoral purposes is not under 8 USC § 1101(a)(43)(K)(i)). California law broadly defines prostitution as engaging in sexual intercourse or any lewd acts with another person for money or other consideration. Lewd acts include touching of genitals, buttocks or female breast with the intent to sexually arouse or gratify. CALCRIM 1153. but gov’t can present other evidence of conduct.
Victims of human trafficking. If the defendant may be a victim, see discussion at Advice to H&S C 11358.