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9th Circuit
Rohit v. Holder (9th Circuit, February 29, 2012)
WALLACE, Smith, Rakoff (by designation)

Summary: The Ninth Circuit denied Petitioner Rohit’s petition for review of a decision by the Board of Immigration Appeals (BIA) denying Rohit’s application for voluntary departure.

Rohit was convicted of disorderly conduct involving solicitation of prostitution under California Penal Code § 647(b) and of attempting to dissuade a witness or victim under California Penal Code § 136.1(c). The latter offense has long been deemed a crime involving moral turpitude (CIMT). The question presented by Rohit on appeal to the BIA was whether disorderly conduct involving solicitation of prostitution also is a crime involving moral turpitude, thus making Rohit subject to removal and ineligible for voluntary departure under 8 USC § 1227(a)(2)(A)(ii)) (providing that an alien who commits two crimes involving moral turpitude is removable). The question was one of first impression for the BIA. The BIA, in an unpublished (and thus non-precedential) decision, ruled that that solicitation of prostitution is a CIMT. Rohit filed a petition for review in the Ninth Circuit Court of Appeals.

The Ninth Circuit held that the BIA’s determination that solicitation of prostitution is a CIMT was entitled only to some, not strict, deference. See Skidmore v. Swift & Co., 232 U.S. 134, 140 (1944) (holding that when an agency issues an unpublished opinion that interprets a statute without relying on a published opinion, a federal court may give some deference to the opinion but need not accept the agency’s interpretation). Applying the categorical approach prescribed by Taylor v. United States, 495 U.S. 575 (1990), the Ninth Circuit compared the solicitation of prostitution statute to the generic definition of moral turpitude to determine whether the offense is a CIMT. The statute of conviction renders criminally liable any person “[w]ho solicits or who agrees to engage in or who engages in any act of prostitution.” Cal. Pen. Code § 647(b). The generic definition of CIMTs include crimes that “are base, vile, or depraved – if they offend society’s most fundamental values, or shock society’s conscience.” Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1074 (9th Cir. 2007) (en banc), overruled on other grounds by United States v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en banc). 

The Ninth Circuit reviewed a number of precedential decisions by the BIA in which the court identified crimes “quite similar to solicitation of prostitution” – including acts of prostitution, renting a room with the knowledge that it will be used for prostitution, or maintaining a brothel – as being categorically CIMTs. The Ninth Circuit also noted that crimes such as public exposure and consensual intercourse between a minor and an adult are not categorically CIMTs. 

The Ninth Circuit rejected Rohit’s argument that solicitation of prostitution, like public exposure and consensual intercourse between a minor and an adult, should not categorically be deemed a CIMT. The court held that solicitation of prostitution, unlike public exposure, does not encompass protected speech or other conduct that is protected by the First Amendment. It also found that sex between an adult and a minor is not always morally turpitudinous because it is legal when a couple is married, and because the criminalization of the offense in nonmarital situations was driven by the California legislature’s pragmatic policy interests (an attempt to reduce teen pregnancies) rather than by moral considerations.

The Ninth Circuit held that, like the act of prostitution, and unlike public exposure and sex between an adult and a minor, solicitation of prostitution “is always base, vile and depraved.” The court reasoned that because “[s]olicitation is the direct precursor to the act [of prostitution],” and because “[t]he base act is the intended result of the base request or offer,” solicitation of prostitution is categorically a CIMT. The court further held that even a single act of prostitution or act of soliciting prostitution is morally turpitudinous (rejecting Rohit’s argument that the act may only be deemed a CIMT upon repetition). Finally, the court rejected Rohit’s argument that California Penal Code § 647(b) should not categorically be considered a CIMT because it punishes conduct that is not encompassed by the federal definition of prostitution in 8 U.S.C. § 1182(a)(2)(D)(I). The court noted that Rohit is not being removed for prostitution under § 1182(a)(2)(D)(I) but rather for having been convicted of two CIMTs under § 1227(a)(2)(A)(ii). 

The Ninth Circuit concluded that the BIA did not err in determining that Rohit’s conviction for solicitation of prostitution constituted a conviction for a CIMT, and that because Rohit was convicted of two CIMTs, he was removable under § 1227(a)(2)(A)(ii). 

Read the opinion here.