Wilson Law Group published its second newsletter discussing the intersection of criminal and immigration law.  The full text is below.  A PDF version is available at 138-107-wlg-newsletter-there-safe-plea-non-citizens-charged-solicitation-prostitution.pdf

Is there a Safe Plea for Non-Citizens Charged with Solicitation of Prostitution?

February 2014

THIS POSTING IS UPDATED.  Click here to learn the latest developments.   

Happy New Year, and welcome to the latest Wilson Law Group Newsletter.  In our July 2013 issue, Wilson Law Group addressed domestic assault.  In this edition, we focus on solicitation of prostitution.  The spate of prostitution sting operations – including the arrest of nineteen people in Mounds View, MN at the end of October 2013 – has brought the issue of representing immigrants facing a charge of solicitation of prostitution to the forefront.  Between the increase in arrests and the lack of clarity in the federal law, representing non-citizens in these types of criminal cases requires extra care.

Defendants caught in a prostitution sting usually fall into one of two categories: car encounters between defendants and undercover officers, or hotel meetings arranged after a defendant responds to an undercover officer’s online advertisement, such as those listed on backpage.com, which is a website that includes ads for escort and massage services. Many criminal defense attorneys have heard the familiar story from clients who say they were in their car, minding their own business, when a nice woman tried to talk to them.  Alternatively, they somehow ended up at a hotel after calling a number they found on backpage.com. 

In either scenario, a defendant may deny that he was actually seeking sex. Non-citizen defendants who are not native-English speakers may not have understood the undercover police officer’s questions and directions. Be sure to address this potential issue with your non-citizen clients. Audio and video recordings are common in these types of arrests, and may prove vital in presenting a language barrier defense. A defense attorney should review these recordings with their client and assess whether the client understood that there was an offer of sex, and whether the client actually accepted the offer.

The first question is whether solicitation of a prostitute under Minnesota Statute § 609.324 subd. 3(2) (2013) is a removable offense. The short answer is that a single instance of a patron seeking to hire a prostitute will not automatically make a non-citizen removable from the United States.[1] Solicitation, however, is potentially a crime involving moral turpitude (hereinafter “CIMT”).[2] Thus, a conviction can become the basis for seeking someone’s removal from the United States depending on the sentence, the defendant’s criminal history, and the timing of the initial arrest.[3]  

For example, if a non-citizen defendant is convicted of two or more CIMTs not arising out of the same scheme of conduct, the defendant would be removable.[4]  If this is the defendant’s first CIMT conviction, the offense may satisfy the petty-offense exception, which means that the offense is not enough by itself to render the person removable from the United States.  In the case of an undocumented individual, the offense would not pose a per se bar to him or her to apply for relief before the immigration court.[5] The petty offense exception allows a defendant with no legal status to qualify for cancelation of removal if he is convicted under a misdemeanor statute that carries a maximum sentence of no more than 1 year in prison, and he receives a stayed or executed sentence of less than 6 months.[6] Even with the petty offense exception, if a non-citizen defendant has more than one CIMT on his or her record, whether one or all could qualify as a petty offense, the non-citizen is removable, inadmissible and often ineligible for relief.[7]

There is a notable difference in the immigration context between trying to obtain a prostitute for oneself as a patron and being involved in procuring others for prostitution or receiving the proceeds from prostitution, such as pimping or other conduct that would constitute promotion of prostitution.[8]  If a defendant is convicted of an offense involving the latter, he would not be able to establish the good moral character[9] required for cancelation of removal[10] or voluntary departure,[11] and he would be inadmissible under INA § 212 (a)(2)(D). For that reason, during the allocution of a guilty plea to a solicitation offense, it is important that a defendant only allocutes to facts relating to seeking to hire a prostitute.  

A conviction for solicitation could cause some non-citizens issues when they travel abroad and attempt to re-enter the United States. A legal resident, for example, must be advised that a single conviction for solicitation could make him inadmissible, meaning if he were to leave the country he could be denied re-entry. There is an unresolved split between the 8th Circuit and the Board of Immigration Appeals on this issue. Compare Amador-Palomares v. Ashcroft, 382 F.3d 864 (8th Cir. 2004) (upholding the Immigration Judge’s finding that Respondent’s one conviction for attempting to solicit a prostitute rendered him ineligible for suspension of deportation because he lacked good moral character under INA § 212 (a)(2)(D)) with Matter of Gonzalez-Zoquiapan, 24 I. & N. Dec. 549 (BIA 2008) (rejecting Amador-Palomares and finding that one instance of soliciting a prostitute for oneself did not qualify as “procuring” within the meaning of INA § 212 (a)(2)(D)).

Good moral character is also an issue for legal permanent residents seeking to become U.S. citizens, as U.S. Citizenship and Immigration Services will focus on an applicant’s moral wholesomeness demonstrated during the five years preceding the application. A naturalization applicant with a criminal conviction for solicitation of prostitution should consult with an immigration attorney before applying.

The best outcome for a non-citizen charged with a solicitation related offense is a continuance for dismissal, or a plea to public nuisance under Minnesota Statute § 609.74, without any admission of facts related to prostitution. These outcomes are often hard to obtain because prosecutors are often reluctant to offer a non-enhanceable offense in place of an enhanceable one. A plea to loitering with intent to solicit is likely not a better outcome for a non-citizen because it could also be viewed as a CIMT.  Ultimately, what truly matters is the defendant’s admissions. Even if loitering may seem like a better conviction, any admission to prostitution-related conduct is construable as solicitation of prostitution. If your non-citizen client or a defendant is contemplating a guilty plea to a prostitution charge and you are not sure how to advise him or her of the potential consequences, contact one of the immigration attorneys at Wilson Law Group at 612-436-7100.

[1] Matter of Gonzalez-Zoquipan, 24 I. & N. Dec. 549, 552-54, (BIA 2008).
[2] There is no statutory definition of Crime Involving Moral Turpitude (CIMT). If the crime is considered a CIMT by the immigration court and it is not a misdemeanor level offense, it is a removable crime. 8 U.S.C. § 1227 (a)(2)(A)(ii).
[3] 8 U.S.C. § 1227 (a)(2)(A)(ii).
[4] Id.
[5] See INA § 240B for other requirements for non-legal permanent resident cancelation of removal.
[6] INA §§ 240A (b)(1)(C) and 212 (a)(2)(A)(ii)(II), see Matter of Garcia-Hernandez, 231 I & N Dec. 590 (BIA 2002).
[7] 8 U.S.C. § 1227 (a)(2)(A)(ii).
[8] Matter of Gonzalez-Zoquipan, 24 I & N Dec. at 551-54.
[9] INA § 101 (f) (3), 8 U.S.C. § 1101 (f) (3).
[10] INA § 240A (b) (1) (B).
[11] INA § 240B (b) (1) (B).