Thursday, July 27, 2006

Kepilino v. Gonzales (9th Cir. - July 25, 2006)

Here's a riddle for you: When is a prostitute not a prostitute? Answer: When she's a prostitute in Hawaii.

Makes no sense, you say? Perhaps it will after you read this opinion by Judge Pregerson.

Here's the basic scoop. Young Ok Kepilino is a native and citizen of South Korea who comes to the United States as a visitor for pleasure (!) in 1996. She marries an American citizen and adjusts her status in 1998. But in 1999 she's busted for practicing massage (or, should I say, "massage") without a license and for prostitution, pleads no contest to both charges, and pays a fine of $500. Seems pretty routine. Happens all the time, I'm sure.

But then, in 2002, Kepilino goes to visit her sick mother in South Korea. When she comes back into the U.S. at the Honolulu airport, the Department of Homeland Security says: "Nope. You're inadmissible. Under Section 212(a)(2)(D)(i), because you're an alien who's has engaged in prostitution during the past ten years -- and we know you are, since you were found guilty -- you can't enter the United States. See ya."

I didn't know, by the way, that Section 212 really said that. But, upon reading the statute, indeed it does. Which seems pretty harsh -- after all, being booted out of the country is a lot more harsh than the $500 fine imposed for the actual crime. But there you have it.

Interestingly, however, Kepilino argues that even though she was convicted of prostitution, she didn't in fact engage in prostitution. Which seems like a pretty tough argument to make, right? But Judge Pregerson finds that she's right, and reverses the decision below on this basis.

How could that possibly be, you might ask? Remember the answer to the riddle above? That's why. Because Hawaiian prostitutes aren't prostitutes. Or, perhaps more descriptively, because prostitution in Hawaii isn't necessarily prostitution under Section 212 of the INA. That's because, in Hawaii, a person can be convicted of prostitution based upon the performance of "sexual contact" or "sexual penetration" for a fee, and these terms are defined to include, inter alia, touching people through their clothes (i.e., massaging their nether regions) or engaging in oral sex. (This is a family blog, so I'm not going to get too specific here.) By contrast, the INS has interpreted Section 212 to define prostitution as limited to engaging in actual sexual intercourse; indeed, to engage in the practice repeatedly. None of which Kepilino necessarily did, since the admissible records of her Hawaii prostitution conviction doesn't mention specifically what she did (or whether she did it more than once).

Hence, she may be a prostitute, but she's no prostitute. So she can stay in our great nation. Or at least in Hawaii. Who's official motto, ironically enough, is "Ua mau ke ea o ka aina I ka pono." Which means: "The life of the land is perpetuated in righteousness."

Righteousness indeed.