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.