Prostitution Offenses

Immigration Consequences of Criminal Convictions

Prostitution or “commercial sex” is the business or practice of engaging in sexual relations in exchange for money or any other form of compensation. Prostitution is often called the world’s “oldest profession”. Prostitution laws prohibit anyone from providing or offering to provide sexual relations in exchange for payment or some other benefit.Prostitution in the United States is illegal in all fifty states, except in the state of Nevada.

Prostitution in the United States can be divided into three broad categories: street prostitution, brothel prostitution, and escort prostitution. A person who works in this field is called a prostitute, and is a kind of sex worker.

The passage of the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) in 1996, made the immigration consequences of criminal activity far more extensive and hard than at any time in the American history. Direct immigration consequences of crimes can include inadmissibility under INA (Immigration and Nationality Act) § 212(a)(2) and deportability under INA § 237(a)(2).

Indirect consequences of crimes can include ineligibility for American citizenship under INA § 316 for failure to demonstrate good moral character, inadmissibility on health grounds under INA § 212(a)(1)(A)(iii) for a physical or mental disorder associated with a pattern of harmful behavior due to multiple DUI (Driving under the influence of alcohol or drugs ) convictions, and inadmissibility or deportability on security-related grounds under INA § 212(a)(3) and § 237(a)(3). There is no reference to prostitution per se under § 237(a)(2).

In the title 8 of the Code of Federal Regulations (8 CFR) § 316.10 (Good moral character) an applicant shall be found to lack good moral character, if he or she is or has been involved in prostitution or commercialized vice as described in Section 212(a)(2)(D) of the INA (General Classes of Aliens Ineligible to Receive Visas and Ineligible for Admission; Waivers of Inadmissibillity) or 8 U.S.C. § 1182.

Under 8 U.S.C. § 1182(a)(2)(D), inadmissibility is reserved to any alien who:

  1. 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,
  2. directly or indirectly procures or attempts to procure, or (within 10 years of the date of application for a visa, admission, or adjustment of status) procured or attempted to procure or to import, prostitutes or persons for the purpose of prostitution, or receives or (within such 10-year period) received, in whole or in part, the proceeds of prostitution, or
  3. is coming to the United States to engage in any other unlawful commercialized vice, whether or not related to prostitution.

Inadmissibility can apply in several contexts. It makes an alien who is abroad ineligible to receive a visa from a U.S. Embassy, or to be admitted at a port of entry even if he/she already has a visa. A nonimmigrant alien already in the U.S. may be ineligible to adjust to permanent resident status. A limited waiver for these grounds of inadmissibility may be granted by the Attorney General, in his discretion, in certain circumstances under 8 U.S.C. § 1182(h).

Noncitizens in removal proceedings may be eligible for a waiver of inadmissibility pursuant to INA § 212(h). The 1996 amendments to the INA provided that waiver is unavailable to a Lawful Permanent Resident (LPR) who, since admission as an LPR, has been convicted of an aggravated felony or has not lawfully resided continuously in the United States for at least seven years before removal proceedings began. However, this provision does not apply to non-LPRs.

If a defendant is convicted of an offense involving pimping or other conduct that would constitute promotion of prostitution, he would not be able to establish the good moral character required for cancelation of removal or voluntary departure, and he/she would be inadmissible under INA § 212 (a)(2)(D).

Moreover, anyone who profits from, transports or supervises prostitutes is an aggravated felony under §101(a)(43). In addition, given the broad definition of a Crime Involving Moral Turpitude (CIMT) and the Service’s discretion to determine what falls within it, the commercial sex offenses are also CIMT, creating an additional ground of inadmissibility and deportability.

Good moral character is also an issue for legal permanent residents seeking to become U.S. citizens. The U.S. Citizenship and Immigration Services (USCIS) will focus on an applicant’s moral wholesomeness demonstrated during the five years preceding the application.

Any alien convicted of a CIMT is deportable, when the potential term of imprisonment is one year or longer, and the offense was committed within five years of the alien’s admission to the United States.

A naturalization applicant with a criminal conviction for solicitation of prostitution should consult with an immigration attorney before applying. The consequences of a solicitation or prostitution charge, if not handled properly, can be severely damaging to your immigration status.

Prostitution in New York

In New York, Prostitution is punished by N.Y.P.L. § 230.00, a Class B Misdemeanor. A person is guilty of prostitution when such person engages or agrees or offers to engage in sexual conduct with another person in return for a fee.

While a conviction for Prostitution is a relatively minor matter, it could have extremely serious consequences to a non-citizen’s immigration status.A conviction for prostitution is a ground of inadmissibility. See INA 212(a)(2)(D). Also, Prostitution is a Crime Involving Moral Turpitude.

On the other hand, a conviction for promoting prostitution under N.Y.P.L. § 230.20 could be deemed a “prostitution business” aggravated felony.

An aggravated felony conviction must be avoided at all costs. Green Card holders that have been convicted of an aggravated felony will be almost automatically deported by the United States.

Prostitution in New Jersey

According to N.J.S.A. § 2C:34-1, Prostitution is sexual activity with another person in exchange for something of economic value, or the offer or acceptance of an offer to engage in sexual activity in exchange for something of economic value.

Engaging in prostitution in New Jersey is a disorderly person offense, except that a second conviction would be treated as a fourth degree crime. On the other hand, promoting prostitution is a second-degree or a third degree offense, which could probably be deemed a “prostitution business” aggravated felony”.

If you are an immigrant and have been charged with a prostitution offense, speak to a criminal immigration lawyer as soon as possible.

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