U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk

5/07 Leesburg Pike, Suite 2000

Falls Church. Virginia 2204 I

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Sandoval,Carlos Enrique DHS/ICE Office of Chief Counsel - KRO
Carlos E. Sandoval, P.A. 18201 SW 12th St.
450 N. Park Rd. Miami, FL 33194
Suite 803.
Hollywood, FL 33021

Name:DEMOSTHENE,REDONDO A 055-744-453

Date of this notice: 6/29 /2017

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Sincerely,

/'-,;

Cynthia L. Crosby
Deputy Chief Clerk

Enclosure
Panel Members:
Pauley, Roger

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: Redendo Demosthene, A055 744 453 (BIA June 29, 2017)
 U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk

5107 Leesburg Pike, Suite 2000

Falls Church, Virginia 22041

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DEMOSTHENE,REDONDO DHS/ICE Office of Chief Counsel - KRO
A055-744-453 18201 SW 12th St.
GLADES COUNTY Miami, FL 33194
1297 FL-78
MOORE HAVEN, FL 33471

Name:DEMOSTHENE,REDONDO A 055-744-453

Date of this notice: 6/29/2017

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been served with this
decision pursuant to 8 C.F.R. 1292.S(a). If the attached decision orders that you be
removed from the United States or affirms an Immigration Judge's decision ordering that you
be removed, any petition for review of the attached decision must be filed with and received
by the appropriate court of appeals within 3 0 days of the date of the decision.

Sincerely,
//7
c;
\_)
,"'-..,,

Cynthia L. Crosby
Deputy Chief Clerk

Enclosure
Panel Members:
Pauley, Roger

Userteam:

Cite as: Redendo Demosthene, A055 744 453 (BIA June 29, 2017)
-
1

U.S. Department of Justice Decision of the Board of Immigration Appeals

EA'"ecutive Office for Immigration Review

Falls Church, Virginia 22041

File: A055 744 453 - Miami, FL Date: JUN 2 9 2017

In re: REDONDO DEMOSTHENE a.k.a. Redondo Demosthenes

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Carlos E. Sandoval,Esquire

ON BEHALF OF OHS: Gizelle Rodriguez

Assistant Chief Counsel

CHARGE:

Notice: Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. 1227(a)(2)(A)(iii)] -

Convicted of aggravated felony under section 101(a)(43)(K)(i) of the Act

Sec. 237(a)(2)(E)(i), I&N Act [8 U.S.C. 1227(a)(2)(E)(i)] -

Convicted of crime of domestic violence, stalking, or child abuse, child
neglect,or child abandonment

APPLICATION: Termination of proceedings

The Department of Homeland Security ("DHS") appeals the Immigration Judge's decision,
dated March 10, 2017, terminating the removal proceedings against the respondent. The appeal
will be dismissed.
The Board reviews an Immigration Judge's findings of fact, including findings as to the
credibility of testimony, and the likelihood of future events, under the "clearly erroneous"
standard. See 8 C.F.R. 1003.l(d)(3)(i); Matter ofZ-Z-O-, 26 I&N Dec. 586 (BIA 2015). The
Board reviews questions of law, discretion, and judgment and all other issues in an appeal of an
Immigration Judge's decision de novo. See 8 C.F.R. 1003.l(d)(3)(ii).

In his decision, the Immigration Judge applied the categorical approach to the respondent's
2015 Florida conviction for the offense of Deriving Support from Prostitution in violation of FLA.
STAT. ANN. 796.05(1), to determine that it did not constitute an aggravated felony as defined
by section 10l(a)(43)(K)(i) of the Immigration and Nationality Act, 8 U.S.C. 101(a)(43)(K.)(i),
such that the respondent was not subject to removal on that basis (I.J. at 6). Furthermore, the
Immigration Judge found the DHS also failed to meet its burden to establish the respondent's
removability as charged under section 237(a)(2)(E)(i) of the Act, 8 U.S.C. 1227(a)(2)(E)(i) (I.J.
at 2). See Woodbyv. INS, 385 U.S.276,286 (1997); 8 C.F.R. 1240.8 (2017). Having determined
the respondent is not subject to removal as charged, the Immigration Judge granted the
respondent's motion to terminate these removal proceedings (I.J. at 6).

Cite as: Redendo Demosthene, A055 744 453 (BIA June 29, 2017)
AQ55 744 453

The DHS argues for the first time on appeal that the Immigration Judge erred in failing to apply
the "circumstance-specific" approach developed by the Court in Nijhawan v. Holder,551 U.S. 29,
34 (2009), in his determination as to whether the respondent's 2015 Florida conviction for the
offense of Deriving Support from Prostitution 1 constituted an aggravated felony as defined under
section 10l(a)(43)(K)(i) of the Act, i.e., an offense that "relates to the owning, controlling,
managing,or supervising of a prostitution business."

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However, on de novo review, we are not persuaded by the DHS's appellate arguments to
disturb the Immigration Judge's determination,which applying the categorical approach, reflects
a careful, thorough, and exacting examination and analysis of the elements of the respondent's
2015 Florida conviction for the offense of Deriving Support from Prostitution,and the aggravated
felony defined under section 101(a)(43)(K)(i) of the Act-which support his conclusion that the
generic elements of the offense of conviction,and not the particular facts of the conviction,are not
a categorical match,and in fact,broader than the offense defined as an 'aggravated felony' under
federal law. See Descamps v. United States, 133 S.Ct. 2276, 2283-84 (2013) (citing Taylor v.
United States, 495 U.S. 575 (1990)); Moncrieffe v. Holder, 133 S.Ct. 1678,1684 (2013) (quoting
Gonzales v. Duenas-Alvarez, 549 U.S. 183, 186 (2007)); Cole v. United States Att'y Gen., 712
F.3d 517,527 (11th Cir. 2014).

We consider that at no time during the course of the proceedings before the Immigration Judge,
did the OHS raise the issue,or make its objection known on the record so as to preserve the issue
for appeal. The Bqard has held that matters not raised before the Immigration Judge are not
preserved for appeal. See Matter ofEdwards, 20 I&N Dec. 191,194 n.4 (BIA 1990). Moreover,
the arguments now raised by the DHS on appeal,are in direct conflict to the arguments the OHS
advanced throughout the course of these proceedings. In particular,we consider that in the motion
filed the OHS in opposition to the respondent's motion to terminate-the OHS specifically argues
the application of the categorical approach favored its position. See DHS's motion in opposition.
The OHS is in the untenable position of now challenging the Immigration Judge's use of the
categorical approach when it had specifically argued in favor of that approach in the proceedings
before the Immigration Judge. See DHS's motion in opposition.
Moreover,the DHS fails to cite to any support in the federal courts for taking the circumstance
specific approach with regards to section 10l(a)(43)(K)(i) of the Act. The federal courts that have
addressed this particular aggravated felony ground of removability, have consistently held that
application of the categorical approach is the proper methodology employed to determine whether
a particular state offence constitutes an aggravated felony under section 10l{a)(43)(K)(i) of the
Act. See Prus v. Holder, 660 F.3d 144,146 (2d Cir. 2011); Familia Rosario v. Holder, 655 F.3d
739, 749 (7th Cir. 2011); Depasquale v. Gonzales, 196 Fed. Appx. 580, 581 (9th Cir. 2006).
Although the Eleventh Circuit has not yet weighed in on the issue,the Seventh Circuit has not only
addressed,but also expressly rejected the use of the circumstance-specific approach in favor of a
1 The respondent's statute of conviction,FLA. STAT. ANN. 796.05 - Deriving support from
the proceeds of prostitution,provides in relevant part,

(1) It shall be unlawful for any person with reasonable belief or knowing another person is engaged
in prostitution to live or derive support or maintenance in whole or in part from what is believed
to be the earnings or proceeds of such person's prostitution.

2
Cite as: Redendo Demosthene, A055 744 453 (BIA June 29, 2017)
A055 744 453

categorical approach in relation to determining whether an offense constitutes an aggravated

felony under section 101(a)(43)(K.)(i) of the Act. Specifically, in Familia Rosario v. Holder, the
court held in that it was not convinced that:

". . . the aggravated felony provision at issue here invites a "circumstance-specific"

approach that the Supreme Court found applicable in Nijhawan v.Holder, 557 U.S. 29

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(2009) (fmding circumstance-specific approach appropriate to determine the loss amount
under INA 101(a)(43)(M)(i); 8 U.S.C. 1101(a)(43)(M)(i), which includes as an
aggravated felony "an offense that ...involves fraud or deceit in which the loss to the
victim or victims exceeds $10,000") (emphasis added). Subsection (K)(i), unlike the
provision involved in Nijhawan, does not include any language such as "in which" that
would indicate a need to peer into the conduct involved or the specific goal or
circumstances of the conspiracy at issue; it only requires that the "offense " relate to the
owning, controlling, managing or supervising of a prostitution business, a question the
court is able to answer without resorting to the facts." Id at 749.

Contrary to the DHS's appellate arguments, as noted by the Familia Rosario court, there is
nothing in the statutory language of section 10l(a)(43)(K)(i) of the Act-which only requires that
it be established that the offense "relate to the owning, controlling, managing or supervising of a
prostitution business," that would warrant peering into the brute facts of the underlying statute of
conviction. The DHS has not shown how an examination of the elements of the respondent's
Florida offense of conviction that would need to be proven in order to obtain a conviction so as to
determine whether it is a categorical match to the offense defined as an 'aggravated felony' under
section 101(a)(43)(K)(i) of the Act, supports their claim that it would defeat Congressional intent.
The DHS's appellate arguments focus exclusively on its contention that application of the
circumstance-specific approach is appropriate to find the respondent convicted of an aggravated
felony under section 10l(a)(43)(K)(i) of the Act. However, other than to challenge as erroneous
the Immigration Judge's failure to apply this methodology, the DHS does not meaningfully address
in any manner the Immigration Judge's application of the categorical approach to find the DHS
has not met its burden to establish the respondent's removability as charged. Consequently, the
Immigration Judge's decision is affirmed for the reasons stated therein and the appeal will be
dismissed.

Accordingly, the following order will be entered.

ORDER: The appeal is dismissed.

3
Cite as: Redendo Demosthene, A055 744 453 (BIA June 29, 2017)
 UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
18201 S.W. 12TH ST
MIAMI, FL 33194

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Carlos E. Sandoval, P.A.
Sandoval, Carlos Enrique
450 N. Park Rd.
Suite 803
Hollywood, FL 33021

IN THE MATTER OF FILE A 055-744-453 DATE: Mar 10, 2017

DEMOSTHENE, REDONDO

UNABLE TO FORWARD - NO ADDRESS PROVIDED

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION

fIS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS
WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION.
SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL.
YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AND FEE OR FEE WAIVER REQUEST
MUST BE MAILED TO: BOARD OF IMMIGRATION APPEALS
OFFICE OF THE CLERK
5107 Leesburg Pike, Suite 2000
FALLS CHURCH, VA 22041

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT

OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING.
THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE
WITH SECTION 242B{c} {3) OF THE IMMIGRATION AND NATIONALITY ACT, 8 U.S.C.
SECTION 1252B(c) (3) IN DEPORTATION PROCEEDINGS OR SECTION 240(c){6),
8 U.S.C. SECTION 1229a(c)(6} IN REMOVAL PROCEEDINGS. IF YOU FILE A MOTION
TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:

IMMIGRATION COURT
18201 S.W. 12TH ST
MIAMI, FL 33194

OTHER:

FF
CC: Gizelle Rodriguez
33 South Miami Avenue
Miami, FL, 33130
 /

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
KROME SERVICE PROCESSING CENTER
MIAMI, FLORIDA

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IN THE MATTER OF: )
)
DEMOSTHENE, Redondo ) IN REMOVAL PROCEEDINGS
)
A# 055-744-453 )
)
RESPONDENT )

CHARGES: Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act (Act): an

alien who is convicted of an aggravated felony, to wit: section
101(a)(43)(K)(i) of the Act, at any time after admission.

Section 237(a)(2)(E)(i) of the Act: an alien who at any time after

admission is convicted of a crime of domestic violence, a crime of
stalking, or a crime of child abuse, child neglect, or child abandonment.

ON BEHALF OF RESPONDENT ON BEHALF OF THE DEPARTMENT

Carlos E. Sandoval, Esq. Gizelle Rodriguez, Assistant Chief Counsel
Carlos E. Sandoval, P.A. Department of Homeland Security
450 N. Park Road, Suite 803 18201 SW 12th Street
Hollywood, Florida 33021 Miami, Florida 3 3194

WRITTEN DECISION AND ORDER OF THE IMMIGRATION JUDGE

I. Procedural History

Redondo Demosthene (Respondent) is a twenty-three-year-old male, native and citizen of

Haiti. He was admitted to the United States as a lawful permanent resident immigrant on August
22, 2004. On February 2, 2017, the Department of Homeland Security (DHS) filed a Notice to
Appear (NTA) with the Court, charging Respondent with removability under sections
237(a)(2)(A)(iii) (an alien convicted of an aggravated felony, to wit: an offense that relates to the
owning controlling, managing, or supervising of a prostitution business) and 237(a)(2)(E)(i) (an
alien convicted of a crime of domestic violence, stalking, or child abuse, neglect, or
abandonment) of the Act. See Exhibit 1.

On February 17, 2016, Respondent, through counsel, admitted all five factual allegations
contained in the NTA, namely that: (1) he is not a citizen or national of the United States; and (2)
he is a native and citizen of Haiti; (3) he was admitted to the United States at Miami, Florida, on
or about August 22, 2004, as a lawful permanent resident immigrant; (4) adjudication was

1
 -

withheld on June 17, 2015, in the Judicial Circuit in and for Broward County, Florida, for the
offense of deriving support from prostitution, in violation of section 796.05(1) of the Florida
Statutes; and (5) he was sentenced on June 17, 2015, to thirty-six months of supervised probation
term and special conditions, including curfew for six months and no contact with minor children
without adult supervision. Id: Respondent denied both charges of removability on the same day.
The Court found that OHS failed to meet its burden to prove that Respondent is removable as

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charged under section 237(a)(2)(E)(i) of the Act. See Woodby v. INS, 385 U.S. 276, 286 (1997);
8 C.F.R. 1240.8 (2017).

During this hearing, Respondent filed a motion to terminate proceedings, arguing that his
conviction under section 796.05(1) of the Florida Statutes is not an aggravated felony as defined
by section 101(a)(43)(K)(i) of the Act. See Respondent's Motion to Terminate with Prejudice
[hereinafter Respondent's motion]. The Court continued the case to afford OHS the opportunity
to respond. On February 28, 2017, OHS filed a written opposition to Respondent's motion. See
DHS's Opposition to Respondent's Motion to Terminate [hereinafter OHS Opposition].
Consequently, the Court reserved the case for the issuance of a written decision.

II. Discussion

To determine whether a state law offense qualifies as an aggravated felony, the Court
must employ the "categorical approach." See Moncrieffe v. Holder, 133 S. Ct. 1678, 1684-85
(2013); Shepard v. United States, 544 U.S. 13, 17 (2005); Taylor v. United States, 495 U.S. 575,
598-99 (1990); Cole v. U.S. Att'y Gen., 712 F.3d 517, 527 (11th Cir. 2014). The alien's actual
conduct is irrelevant under the categorical approach. Mathis v. United States, 136 S. Ct. 2243,
2248 (2016).

Under this approach, the Court looks to whether the statutory elements of a respondent's
crime categorically fit within the definition of the generic offense. See Descamps v. United
States, 133 S. Ct. 2276, 2281 (2013); Moncrieffe, 133 S. Ct. at 1684 (quoting Gonzales v.
Duenas-Alvarez, 549 U.S. 183, 186 (2007) (citing Taylor, 495 U.S. 575, 599--600 (1990))).
"'Elements' are the 'constituent parts' of a crime's legal definition-the things the 'prosecution
must prove to sustain a conviction."' Mathis. 136 S. Ct. at 2248 (citing Black's Law Dictionary
634 (10th ed. 2014)). During a trial, the jury must find such elements beyond a reasonable doubt
to convict the defendant and in the event of a plea hearing, the elements are what the defendant
admits to when he pleads guilty-not the facts. See id. (citing Richardson v. United States, 526
U.S. 813, 817 (1999); McCarthy v. United States, 394 U.S. 459, 466 (1969)).

A state offense is a categorical match with a generic federal offense only if a conviction
of the state offense involved the elements matching the generic federal offense. Moncrieffe, 133
S. Ct. at 1684-85. If the statute encompasses broader conduct than the generic crime, the Court
must "presume that the conviction rested upon nothing more than the least of the acts
criminalized, and then determine whether even those acts are encompassed by the generic federal
offense." Donawa v. U.S. Att'y Gen., 735 F.3d 1275, 1280 (11th Cir. 2013) (quoting
Moncrieffe, 133 S. Ct. at 1684). Unless circuit court law dictates otherwise, the Court must
focus on the minimum conduct that has a "realistic probability" of being prosecuted under the

2
statute of conviction. Matter of Silva-Trevino, 26 l&N Dec. 826, 83 1 (BIA 2016) (citing
Moncrieffe, 133 S. Ct. at 1684-85; Duenas-Alvarez, 549 U.S. at 193 (explaining that to show a
realistic probability, an offender "must at least point to his own case or other cases in which the
state courts in fact did apply the statute in the special (nongeneric) manner for which he
argues")).

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A statute is "divisible" when the statute lists elements of the offense in the alternative,
thereby creating alternative crimes. Descamps, 133 S. Ct. at 2281, 2284; Matter of Chairez, 26
I&N Dec. at 819-20. If the divisible statute encompasses some crimes that meet the federal
definition and others that do not, the Court employs the "modified categorical approach."
Mathis, 136 S. Ct. at 2253; Taylor, 495 U.S. at 575; Jaggernauth v. U.S. Att'y Gen., 432 F.3d
1346, 1354-55 (11th Cir. 2005); Silva-Trevino, 26 I&N Dec. at 833. Therefore, a divisible
criminal statute warrants a modified categorical inquiry only if ( 1 ) it lists multiple discrete
offenses as enumerated alternatives or defines a single offense by reference to disjunctive sets of
"elements," more than one combination of which could support a conviction, and (2) at least one,
but not all, of those listed offenses or combinations of disjunctive elements is a categorical match
to the relevant generic standard. See Mathis, 136 S. Ct. 2243; Chairez, 26 I&N Dec. at 822
(citing Descamps, 133 S. Ct. at 2281, 2283).

Under the modified categorical approach, the Court may look to the record of conviction,
which includes the charging document, plea, plea colloquy, verdict or judgment, and sentence.
See Jaggernauth, 432 F.3d at 1354-55; see also Shepard, 544 U.S. at 26. This approach "acts not
as an exception, but instead a tool" in applying the categorical approach, and it "retains the
categorical approach's basic method: comparing [the conviction's] elements with the generic
offense's." Descamps, 133 S. Ct. at 2285.

In this case, the issue is whether Respondent's state conviction relates to "owning,
controlling, managing, or supervising" a prostitution business. 1 See 101(a)(43)(K)(i) of the
Act; see also Prus v. Holder, 660 F.3d 144, 146-47 (2d Cir. 2011) (explaining that "relates to"
modifies "owning, controlling, managing or supervising" but not the underlying criminal
conduct). The phrase "relating to a controlled substance" is not defined in the Act, but the
"relating to" concept has a broad ordinary meaning, namely, "'to stand in some relation; to have
bearing or concern; to pertain; refer; to bring into association with or connection with."' Matter
of Espinoza, 25 I. & N. Dec. 1 18, 120 (BIA 2009) (citing Morales v. Trans World Airlines Inc.,
1 The Court does not decide in this decision but nonetheless notes Respondent and DHS 's arguments regarding the
definition of "prostitution," as the Act itself does not define this term. See Respondent's Motion at 1,I 1 6-20;
DHS 's Opposition at 3-4. In another context and case arising out of the Ninth Circuit, the Board of Immigration
Appeals concurred with the Ninth Circuit 's definition of prostitution as "engaging in promiscuous sexual intercourse
for hire." See Matter of Gonzalez-Zoguiapan, 24 l&N Dec. 549, 553-54 (BIA 2008), concurring with Kepilino v.
Gonzales, 454 F.3d 1 057, 1 06 1 n.2 (relying on the Department of State's definition for purposes of section
2 1 2(a)(2)(D) of the Act)). However, the Court observes various federal criminal offenses relating to prostitution
some of which refer to prostitution offenses "as defined in the laws of the state in which they are committed." 1 8
U.S.C. 1 952(b); see also 1 8 U. S.C. 1 3 84, 1 589 et seq., 242 1 et seq.; see generally Burgess v. United States, 1 28
S. Ct. 1 572, 1 577 (2008); Colautti v. Franklin, 99 S. Ct. 675, 684 ( 1 979) (explaining that if a word or phrase is
defined in the statute or elsewhere in the United States Code, then that definition governs if applicable in the context
used).

3
504 U.S. 374, 383 (1992) (quoting Black's Law Dictionary 1158 (5th ed. 1979))). However, the
words "relating to" are broad and indeterminate but cannot be "extend[ ed] to the furthest stretch
of [their] indeterminacy[.]" Mellouli v. Lynch, 135 S. Ct. 1980, 1990 (2015) (requiring a "direct
link" between the elements of a state crime of conviction and a federal statute in another
context); see also Familia Rosario v. Holder, 655 F.3d 739 (7th Cir. 2011) (rejecting a
"circumstance-specific" approach in this context and finding that 8 U.S.C. 1328 does not

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categorically require any "relation to" a position of authority or power in such a business as an
element even if such conduct may be encompassed by the statute).
The Act does not define the terms of "owning, controlling, managing, or supervising."
Thus, the Court looks to other sources in accordance with the canons of statutory interpretation.
If a word or phrase is defined in the statute or elsewhere in the United States Code, then that
definition governs if applicable in the context used. See Burgess v. United States, 1 28 S. Ct.
1572, 1 577 (2008); Colautti v. Franklin, 99 S. Ct. 675, 684 (1979). However, in the absence of a
statutory definition, the Court should construe a statutory term in accordance with its ordinary or
natural meaning. See Gonzales v. Carhart, 127 S. Ct. 1 610, 1 630 (2007); Stenberg v. Carhart,
1 20S. Ct. 2597, 2615 (2000). Thus, the Court takes notice of Black's Law Dictionary, which
defines "own" as "to rightfully have or possess as property." Black's Law Dictionary (10th ed.
2014). It further defines "control" as "to exercise power or influence over" and "manage" as "to
conduct, control, carry on, or supervise." Id. Oxford Dictionary defines "supervise" as "to
observe and direct the work of someone." Oxford Dictionary (last visited 2017).

Respondent's statute of conviction provides: "It shall be unlawful for any person with
reasonable belief or knowing another person is engaged in prostitution to live or derive support
or maintenance in whole or in part from what is believed to be the earnings or proceeds of such
person's prostitution." Fla. Stat. 796.05(1) (2015). 2 The elements of the crime are: (i) having
the reasonable belief or knowing another person is engaged in prostitution; (ii) to live or derive
support or maintenance in whole or in part (iv) from what is believed to be the earning or
proceeds of such person's prostitution. Id. Thus, the Court must consider whether "living" and
"deriving" support or maintenance from the earnings or proceeds of someone known to engage
in prostitution directly relates to "owning, controlling, managing, or supervising" a prostitution
business. See Mellouli v. Lynch, 135 S. Ct. at 1990.

Respondent's statute of conviction does not define either term. See Fla. Stat.
796.05(1), 796.07 (defining prostitution and other terms in this subsection of the Florida
Statutes). Merriam-Webster Dictionary defines to "live" as "to maintain oneself on such
proceeds" and to "derive" as "to take, receive, or obtain from such proceeds." Merriam-Webster
Dictionary (last visited 2017). Neither term directly relates to "owning" (rightfully having or
possessing as property), "controlling" (exercising power or influence over), "managing"
2
In a separate definitional section of the statute, ''prostitution" is defined as "the giving or receiving of the body for
sexual activity for hire but excludes sexual activity between spouses." Helms v. State, 38 So. 3d 1 82, 1 84 (Fla. Dist.
Ct. App. 20 10) (quoting section 796.07(l )(a) of the Florida Statutes). "Sexual activity" means "oral, anal, or vaginal
penetration by, or union with, the sexual organ of another; anal or vaginal penetration of another by any other object;
or the handling or fondling of the sexual organ of another for the purpose of masturbation." Fla. Stat.
796.07{l)(d). It does not include "acts done for bona fide medical purposes." Id.

4
(conducting, controlling, carrying on, or supervising) or supervising (observing and directing the
work of someone). Oxford Dictionary (last visited 2017); Black's Law Dictionary (10th ed.
2014). The plain language of this statute encompasses the simple acts of maintaining or
receiving support from such proceeds. See Fla. Stat. 796.05(1); Merriam-Webster Dictionary
(last visited 2017). Consequently, this statute on its face encompasses broader conduct than the
generic crime. Compare Fla. Stat. 796.05(1), with 101(a)(43)(K)(i) of the Act; see generally

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Moncrieffe, 133 S. Ct. at 1984-85.

However, the least of the acts criminalized is for a person with reasonable belief to derive
support or maintenance from earnings or proceeds of another person's prostitution. See Donawa,
735 F.3d at 1280. Aforementioned, the plain language of the text suggests that such conduct
would include the mere act of receiving support from such proceeds. See Merriam-Webster
Dictionary (last visited 2017). Florida case law indicates that there is no realistic probability that
the mere act of "receiving suppqrt" from someone known to engage in prostitution would equate
to "living from" or "deriving support" would be sufficient to obtain a conviction under this
statute. State v. Morris, 540 So. 2d 226 (Fla. Dist. Ct. 1989) (finding such allegation insufficient
to charge the crime under this statute); see also United States v. Hernandez, 194 Fed. Appx. 851,
885 n.6 (11th Cir. Sept. 8, 2006) involving a defendant who worked for six months as a
doorman at a house of prostitution). Instead, a Florida court has found that a defendant was
properly convicted for deriving support when an undercover officer entered the defendant's
establishment and paid the defendant fifty dollars at the direction of a female employee and that
female employee indicated that amount would pay for oral sex. See Pronesti v. State, 847 So. 2d
1165 (Fla. Dist. Ct. 2003). Although in Pronesti, the defendant was the owner of the
establishment, that fact of ownership and the facts relating thereto were not necessary as an
element of the conviction. See id. Thus, although the conduct criminalized may involve facts
which overlap with "owning, controlling, managing, or supervising" a prostitution business,
there are no elements that directly link to such activities. Cf. Fla. Stat. 796.07(2)(a)--(d), (g)-
(h); see generally Mellouli, 135 S. Ct. at 1 990 (rejecting the position that a state statute with
"substantial overlap" with the federal statute would provide a sufficient link between the state
and federal statutes). Thus, Respondent's conviction is not a categorical match to the federal
offense. See Donawa, 735 F.3d at 1280.

Furthermore, recourse to the modified categorical approach is not available. The statute
incorporates two discrete offenses listed as alternatives: (i) living in whole or in part from what is
believed to be the relevant earnings or proceeds; and (ii) deriving support or maintenance in
whole or in part from what is believed to be the relevant earnings or proceeds. See, ' Helms
v. State, 38 So. 3d 182, 184 (Fla. Dist. Ct. App. 2010) (involving a defendant who derived
support from such earnings); Brown v. State, 506 So. 2d 1068 (Fla. Dist. Ct. App. 1987)
(involving a defendant who lived off such earnings). Thus, the statute is divisible. See Mathis,
136 S. Ct. at 2249. However, aforementioned, the plain language of the statute suggests that
such conduct would include the mere act of maintaining oneself on such proceeds. See Merriam
Webster Dictionary (last visited 2017). A Florida court has refused to reverse a conviction for
"living" off such proceeds where the defendant was involved in the operation of escort services
3
Although this decision is unpublished, the Court finds it persuasive.

5
that her fiance had established and that she continued to run after he ended his affiliation with the
business. See Eaton v. State, 481 So. 2d 1254 (Fla. Dist. Ct. App. 1986) (finding the statutory
language was not unconstitutionally void for vagueness). As is the case with "deriving support
or maintenance," the facts to establish the element of "living" off the proceeds overlapped with
"owning, controlling, managing, or supervising" a prostitution business but the conduct
criminalized did not categorically require an element that directly links to such activities. Cf.

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Fla. Stat. 796.07(2)(g); see generally Mellouli, 135 S. Ct. at 1990. As there is no conduct
under this statute which matches the federal offense, the Court cannot engage in the modified
categorical approach. See Mathis, 136 S. Ct. 2243; Chairez, 26 I&N Dec. at 822 (citing
Descamps, 133 S. Ct. at 2281, 2283. Consequently, the Court finds that Respondent's conviction
is not a categorical match to the generic offense. See Moncrieffe, 133 S. Ct. at 1684-85;
Shepard, 544 U.S. at 17; Cole, 712 F.3d at 527.

Accordingly, the Court finds that DHS has failed to meet its burden that Respondent is
removable as charged. See Woodby, 385 U.S. at 286; 8 C.F.R. 1240.8. In light of the
foregoing, the Court will enter the following order:

ORDER OF THE IMMIGRATION JUDGE

IT IS HEREBY ORDERED that the charge of removability under section

237(a)(2)(A)(iii) of the Act is NOT SUSTAINED.

IT IS HEREBY ORDERED that Respondent's motion to terminate is GRANTED.

IT IS FURTHER ORDERED that Respondent's case be DISMISSED without

prejudice.

DATED this /P r11

day of March, 2017

Appeal due: )&/ f