Solicitation of Prostitution –  Morality Meets Deportation

The immigration consequences of a conviction for solicitation of a prostitute for several decades was not considered categorically a crime involving moral turpitude (hereinafter “CIMT”), although Wilson Law Group cautioned that it was potentially such a crime.  Recently, the Eighth Circuit issued an opinion in Gomez-Gutierrez v. Lynch definitively categorizing the 2006 version of the Minnesota solicitation of a prostitute statute as a CIMT. No. 14-3374, 2016 WL 362427, at*4 (8th Cir. Jan. 29, 2016).

Gomez-Gutierrez means that solicitation of a prostitute is not a safe plea at this time. A single conviction for a crime involving moral turpitude can make someone inadmissible to the United States. A Minnesota conviction that is a CIMT will qualify as a petty offense, and no immigration consequences will attach, if it is a misdemeanor or a gross misdemeanor and the sentence imposed is six months or less. INA §§ 240A (b)(1)(C) and 212 (a)(2)(A)(ii)(II), see Matter of Garcia-Hernandez, 23 I & N Dec. 590 (BIA 2002).  The petty offense exception only waives one CIMT; it does not apply to subsequent convictions for crimes of a similar nature.  8 U.S.C. § 1227 (a)(2)(A)(ii).  If someone is inadmissible to the United States because of a CIMT, the government can deny him or her entry at the border, the government can place a person into removal proceedings if he or she is already in the United States, and he or she will be ineligible for residency unless he or she qualifies for a waiver.  

For someone who has already been admitted to the United States, such as a lawful permanent resident, a conviction for solicitation of prostitution can also have dire consequences. A single conviction for solicitation of prostitution makes a non-citizen defendant removable from the United States if the offense was committed within five years of admission and it is a crime for which a sentence of one year or longer may be imposed.  INA § 237(a)(2)(A)(i).  In Minnesota, any gross misdemeanor or felony-level CIMT is a removable offense. In addition, a non-citizen defendant with two or more CIMTs that arise out of separate schemes of criminal misconduct is also removable, regardless of the offense level or sentence imposed.  INA § 237(a)(2)(A)(ii).

CIMTs also make non-citizens ineligible for certain benefits and defenses to removal. For example, a lawful permanent resident will not be able to establish the requisite good moral character to qualify for naturalization if convicted of a CIMT within five years of applying for citizenship. In addition, non-citizens in removal proceedings may also be ineligible for cancellation of removal based on CIMT convictions.

Although Gomez-Gutierrez addressed the 2006 version of the solicitation statute, it most likely applies  to the current version of the statute.   The current version of Minn. Stat. § 609.343, subd. 2 (2016) has the same intent element as the 2006 version, which is the key factor in the analysis. Furthermore, the elements of both subdivisions 2(2) and 2(1) of the current statute closely mirror the language of the 2006 statute.  

Gomez-Guttierez unfortunately makes it harder for non-citizens with a solicitation of prostitution conviction to avoid an immigration consequence.  We encourage someone charged with an offense of solicitation of prostitution to contact Wilson Law Group to mount a vigorous defense to try to avoid the ultimate consequence of a life outside of the United States.