GERTSENSHTEYN

Cite as 24 I&N Dec. 111 (BIA 2007) Interim Decision #3556

In re Boris Izraylovich GERTSENSHTEYN, Respondent

File A71 147 243 - New York

Decided March 14, 2007

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) The categorical approach to determining whether a criminal offense satisfies a particular

ground of removal does not apply to the inquiry whether a violation of 18 U.S.C.

§ 2422(a) was committed for “commercial advantage” and thus qualifies as an aggravated

felony under section 101(a)(43)(K)(ii) of the Immigration and Nationality Act, 8 U.S.C.

§ 1101(a)(43)(K)(ii) (2000), where “commercial advantage” is not an element of the

offense and the evidence relating to that issue is not ordinarily likely to be found in the

record of conviction.

(2) The respondent’s offense was committed for “commercial advantage” where it was

evident from the record of proceeding, including the respondent’s testimony, that he

knew that his employment activity was designed to create a profit for the prostitution

business for which he worked.

FOR RESPONDENT: Jesse Lloyd, Esquire, New York, New York

BEFORE: Board Panel: FILPPU and PAULEY, Board Members. O’LEARY, Temporary

Board Member

PAULEY, Board Member:

This case is before us on remand from the United States Court of Appeals

for the Second Circuit. In our prior order of July 5, 2005, which was vacated

by the court, we agreed with the Immigration Judge’s conclusion that the

respondent’s July 30, 2001, conviction for the offense of conspiracy to entice

individuals to travel in interstate and foreign commerce to engage in

prostitution in violation of 18 U.S.C. § 2422(a) constituted an aggravated

felony conviction under section 101(a)(43)(K)(ii) of the Immigration and

Nationality Act, 8 U.S.C. § 1101(a)(43)(K)(ii) (2000). In doing so, we found

that the respondent’s actions leading to his conviction reflected that his

offense was “committed for commercial advantage.” The respondent’s

appeal will again be dismissed.

In its remand, the Second Circuit directed us to specifically address

“whether the ‘categorical approach’ to determining whether a criminal offense

satisfies a particular ground of removal . . . applies to the inquiry as to whether

a violation of 18 U.S.C. § 2422(a) meets the aggravated felony definition

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under INA 101(a)(43)(K)(ii).” Additionally, we have been directed to

determine whether information beyond the record of conviction may be

relied upon in determining whether the respondent’s violation of 18 U.S.C.

§ 2422(a) was for “commercial advantage.” Both parties were given an

opportunity to file additional submissions.

The respondent is charged with being removable under section

237(a)(2)(A)(iii) of the Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2000), as an “alien

who is convicted of an aggravated felony at any time after admission.” The

precise aggravated felony charge arises under section 101(a)(43)(K)(ii) of

the Act, which provides:

The term “aggravated felony” means—

(K) an offense that—

...

(ii) is described in section 2421, 2422, or 2423 of title 18, United States Code

(relating to transportation for the purpose of prostitution) if committed for

commercial advantage . . . .

The respondent’s removability depends on two separate but related

determinations. First, he must have been convicted of an offense described

in 18 U.S.C. § 2421, 2422, or 2423. Second, the offense must have been

“committed for commercial advantage.” The first determination, requiring a

qualifying conviction, must be made by reference to the record of conviction

alone. The second determination, as we understand the statute, may also

involve an inquiry into the conduct underlying the offense and not just focus

on the statutory elements of the crime. We therefore conclude, for the reasons

subsequently set forth, that whether the offense was “committed for

commercial advantage” may be proved by any evidence, including evidence

outside the record of conviction.

In Matter of Pichardo, 21 I&N Dec. 330 (BIA 1996), we explained, in the

“firearms” offense context, the distinction between a crime that may have

been “committed” by an alien and the crime of which the alien was actually

“convicted.” When the statute directs a focus on an alien’s conviction, as

opposed to his or her conduct or behavior, we have long restricted the

inquiry to evidence in the “record of conviction,” an approach that parallels

that outlined in Taylor v. United States, 495 U.S. 575 (1990), and

Shepard v. United States, 544 U.S. 13 (2005). E.g., Matter of S-, 2 I&N

Dec. 353, 357-58 (BIA, A.G. 1945) (explaining, in the context of a crime

involving moral turpitude, that the record of conviction may be consulted

when considering a “divisible” statute, and outlining what today would be

termed a “modified categorical approach”); see also Gonzales v.

Duenas-Alvarez, 127 S. Ct. 815 (2007) (referencing the “categorical” and

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“modified categorical” approaches in the context of an aggravated felony

“theft” offense).1

The ground of removal charged against the respondent requires a focus

on a “conviction” for an aggravated felony, which is alleged to be his

conviction under 18 U.S.C. § 2422(a). This criminal statute, however, does

not have as a requirement that the crime be committed for “commercial

advantage.”2 The absence of a “commercial advantage” element in the

criminal statute means that the respondent would not be removable if our

inquiry were limited to an assessment of what the criminal trier of fact was

required to find in order to convict the respondent. Indeed, the above-cited

court decisions all focus on the elements that necessarily were found by either

a jury or a sentencing judge in the course of a determination of guilt. Our

own body of administrative case law, exemplified by Matter of Pichardo,

supra, and Matter of S-, supra, similarly focuses on the elements of a criminal

statute when the question is the nature of the “conviction” sustained by the

alien.

The question before us, then, becomes the import of the requirement in

section 101(a)(43)(K)(ii) of the Act that the offense be “committed for

commercial advantage.” An examination of the criminal statutes enumerated

in the aggravated felony provision clarifies any possible ambiguity as

to whether that language references an “element” of the crime or more

general behavior associated with the underlying criminal conduct. In 1996,

when section 101(a)(43)(K)(ii) was enacted by section 440(e) of the

Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132,

1

We note that the Supreme Court’s recent decision in Gonzales v. Duenas-Alvarez, supra,

is the only one of the above trilogy of decisions of the Court to have applied the categorical

approach in the immigration context, and that no decision of the Court has ever addressed

whether the approach extends to an aspect of an aggravated felony that goes beyond

ascertaining the crime of which the defendant was convicted. Furthermore, while the courts

of appeals have “uniformly” applied some version of the categorical approach developed in

Taylor v. United States, supra, in applying the aggravated felony definition in immigration

cases, see Gonzales v. Duenas-Alvarez, supra, at 818, variations exist among the circuits as

to exactly how that approach is administered. In this case, we need not explore whether the

categorical and modified categorical approaches, which were developed in the criminal case

context, are fully portable into the immigration arena. See, e.g., Conteh v. Gonzales, 461

F.3d 45, 55 (1st Cir. 2006) (“[W]e decline the invitation to transplant the categorical

approach root and branch–without any modification whatever–into the civil removal

context.”).

2

In relevant part, 18 U.S.C. § 2422(a) (2000) provides:

Whoever knowingly persuades, induces, entices, or coerces any individual to travel in

interstate or foreign commerce, or in any Territory or Possession of the United States,

to engage in prostitution, or in any sexual activity for which any person can be charged

with a criminal offense, or attempts to do so, shall be . . . imprisoned . . . .

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110 Stat. 1214, 1277-78 (“AEDPA”),3 none of the offenses in 18 U.S.C.

§§ 2421, 2422(b), and 2423 required that the crime be committed for

commercial advantage.4 Moreover, by clarifying in a later amendment that the

aggravated felony offense must have been “committed” for commercial

advantage, see supra note 4, Congress clearly intended that the circumstances

of the particular crime would be considered.

We find that where Congress has defined an aggravated felony to include

a component (e.g., “commercial advantage”) that is neither an element of the

underlying offense nor a basis for a sentence enhancement, and thus would

not normally be alleged in a criminal charging instrument, it would defeat the

statute to require the application of the categorical (or modified categorical)

approach, in which only the statute itself and the limited materials constituting

the record of conviction may be consulted.5 Applying the categorical or

modified categorical approach would effectively have rendered

section 101(a)(43)(K)(ii) a nullity prior to 2003 and would give it extremely

limited scope today.

We also predicate our holding on our general understanding of the structure

of the aggravated felony provision as a whole. In its various amendments to

the aggravated felony definition, Congress has expanded the scope of crimes

deemed to qualify as aggravated felonies, but has frequently included

requirements that extend beyond the elements of the offenses. Perhaps the

most common additional requirement pertains to the length of the sentence

given for the conviction. The sentence handed out for a crime is not an

“element” that must be proved to establish guilt. While the length of sentence

can readily be ascertained from the criminal judgment and sentencing papers,

it is an aspect of the criminal case that arises following a conviction, not

preceding it. In this respect, the length of sentence requirement associated, for

example, with a “theft” offense distinguishes aggravated felony theft

convictions from lesser theft convictions that did not result in a qualifying

sentence. To the extent that they are employed, these “length of sentence”

3

Our prior order mistakenly stated that the provision was added by section 321 of the

Illegal Immigration and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208,

110 Stat. 3009-546, 3009-627 (“IIRIRA”). In fact, IIRIRA made a clarifying correction that

added the words “if committed” before the phrase “for commercial advantage.”

4

In 2003, Congress added an offense, codified at 18 U.S.C. § 2423(d), that now requires

that the crime be committed “for the purpose of commercial advantage or private financial

gain.” That circumstance, however, is irrelevant in determining congressional intent in 1996

when the section 101(a)(43)(K)(ii) aggravated felony provision was enacted. Moreover, six

out of the seven offenses referenced in 18 U.S.C. §§ 2421, 2422, and 2423 still lack an

element requiring a showing of “commercial advantage.”

5

A criminal charging document would be very unlikely to allege, and a plea colloquy very

unlikely to explore, a “commercial advantage” purpose for an offense under 18 U.S.C.

§ 2422, because it is not an element of the crime, and the applicable sentencing guideline

contains no enhancement if such a purpose is shown.

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provisions are the “aggravating” factors that distinguish ordinary crimes from

the more serious “aggravated felonies” of the same general character.

We understand the “commercial advantage” requirement at issue to operate

in the same manner. In 1996, it was not an element of any of the crimes

enumerated in section 101(a)(43)(K)(ii), but it is a factor that helps to set apart

lesser offenses from more serious ones. Not all convictions under 18 U.S.C.

§ 2422 qualify as aggravated felonies. But the ones that were “committed for

commercial advantage” do qualify. The main difference, though not

necessarily an inconsequential one, between this “commercial advantage”

restriction and “length of sentence” restrictions is that only the latter can

readily be ascertained by consulting conviction records. In order to give life

to the “commercial advantage” restriction, the parties must be able to offer

evidence outside the strict confines of the record of conviction, although on

occasion it may be possible to convincingly deduce commercial advantage

from some conviction records, such as those describing extensive conspiracies

and criminal business enterprises.6

In sum, section 101(a)(43)(K)(ii) of the Act is composed of two separate

and distinct conditions. First, the offense must be “described in section 2421,

2422, or 2423 of title 18, United States Code (relating to transportation for the

purpose of prostitution).” As to this condition, the categorical and modified

categorical approaches to “convictions” apply.7 Second, the offense must be

“committed for commercial advantage.” In determining whether the offense

was committed for “commercial advantage,” it is certainly appropriate for an

Immigration Judge to consider the record of conviction, but the inquiry is not

restricted to the “elements” needed for conviction. In addition, the

Immigration Judge may consider the presentence report, the respondent’s own

6

The particular aggravated felony provision before us may be a difficult provision to apply

in the criminal sentence enhancement context as a result of the Supreme Court’s decision

in Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny. But it is capable of

application in the removal context. And Congress cannot be charged with anticipating these

Supreme Court rulings at the time the section 101(a)(43)(K)(ii) aggravated felony provision

was added to the statute.

7

We recognize that this also includes State and foreign offenses that are comparable (save

for jurisdictional aspects) to those Federal offenses. See section 101(a)(43) of the Act (“The

term [‘aggravated felony’] applies to an offense described in this paragraph whether in

violation of Federal or State law and applies to such an offense in violation of the law of a

foreign country for which the term of imprisonment was completed within the previous

15 years.”).

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admissions, and any other relevant evidence pertaining to aspects of the

criminal conviction.8 Otherwise, section 101(a)(43)(K)(ii) of the Act would

be rendered of little or no effect, because virtually no individual convicted

under 18 U.S.C. §§ 2421, 2422, or 2423 could be ordered removed without

examining the underlying nature of the offense to determine whether the crime

was committed for a commercial advantage.

Although some burden to the system may result from the inapplicability of

the categorical approach in this instance, we believe such burden to be minor.

Cf. Matter of Pichardo, supra, at 336. In any case, we find that it is necessary

in order to give effect to the inclusion by Congress of the provision

requiring a determination whether an alien’s purpose in committing a

section 101(a)(43)(K)(ii) offense was to gain “commercial advantage,” a

determination that is not ordinarily subject to ascertainment through a

categorical approach analysis.9

We therefore properly look beyond the record of conviction in this case to

determine whether the respondent’s criminal offense was committed for a

“commercial advantage.” The evidence of record, including the respondent’s

testimony, reflects that he knew that his employment activity was designed to

create a profit for the prostitution business for which he worked. That activity

included placing clients with prostitutes, collecting payment from the

prostitutes, answering telephones, instructing prostitutes as to the decorum to

be observed with clients, and placing advertisements in the local press. In

considering all the evidence before us, we see no reason to alter our

8

This is much in the same manner that the Board renders its decisions as to whether an

offense is a “particularly serious crime” for purposes of the bar to asylum and withholding

of removal in sections 208(b)(2)(A)(ii) and 241(b)(3)(B)(ii) of the Act, 8 U.S.C.

§§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii) (2000). See Matter of Frentescu, 18 I&N Dec. 244,

247 (BIA 1982) (“In judging the seriousness of a crime, we look to such factors as . . . the

circumstances and underlying facts of the conviction . . . .”); see also Matter of Y-L-, A-G-,

& R-S-R-, 23 I&N Dec. 270 (A.G. 2002).

9

We emphasize that our holding today is limited to the section 101(a)(43)(K)(ii)

aggravated felony definition on which we were specifically asked to opine. We have no

occasion in this case to address whether the categorical or modified categorical approach

is required or prudentially appropriate with respect to establishing removability predicated

on other aggravated felony offenses. We are aware that some courts have held that the

constraints imposed by the categorical and modified categorical approach must be followed

as to the nonoffense-element aspects of other aggravated felony or removal provisions. E.g.,

Conteh v. Gonzales, supra (as to ascertaining the more than $10,000 loss amount from a

fraud offense required under section 101(a)(43)(M)(i) of the Act); Tokatly v. Ashcroft, 371

F.3d 613 (9th Cir. 2004) (regarding proof of the “domestic” nature of the victim under

section 237(a)(2)(E)(i)).

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conclusion that the respondent’s crime was committed for “commercial

advantage.”10 Accordingly, the respondent’s appeal will be dismissed.

ORDER: The appeal is dismissed.

10

In our decision, we rejected the respondent’s contention that the evidence did not show

that he acted “for commercial advantage,” as opposed to “for private financial gain.”

Compare 18 U.S.C. § 2423(d) and section 274(a)(1)(B)(i) of the Act, 8 U.S.C.

§ 1324(a)(1)(B)(i) (2000), with section 101(a)(43)(K)(ii) of the Act. Contrary to the

respondent’s argument, we do not find that our interpretation of “commercial advantage”

renders this term coterminous with “private financial gain.” The latter would exist in a

situation where the alien committed the offense, not as part of an ongoing business, but, for

example, as a one-time act because he needed money. In the instant case, the respondent

committed his offense in order to further the commercial advantage of the business by which

he was employed.

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