FAMILIA ROSARIO v. Holder, 655 F.3d 739

Background

Familia Rosario is a lawful permanent resident since 1999, married to a US citizen with two citizen children.
In 2007 he pled guilty to aiding and abetting a conspiracy to import aliens for prostitution under 8 U.S.C. § 1328, tied to distributing condoms to brothels.
Judgment in 2009 sentenced him to time served, with the government acknowledging he was a minor participant and granting a two-level reduction.
In 2010 DHS initiated removal proceedings, charging removability for a crime involving moral turpitude and for procuring prostitutes; Rosario conceded removability for the former but denied the latter.
Rosario sought cancellation of removal under INA § 240A(a), contending he had five years’ permanent status, seven years’ residence, and no aggravated felony conviction.
The IJ found removability and ineligibility for cancellation due to treating the conviction as an aggravated felony under INA § 101(a)(43)(K)(i), an ruling affirmed by the BIA; the Seventh Circuit granted a petition for review and vacated the removal order, remanding for cancellation analysis.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Rosario's § 1328 conviction is an aggravated felony under § 101(a)(43)(K)(i).	Rosario contends the conviction does not categorically relate to owning/controlling a prostitution business.	Holder argues the conviction relates to owning/controlling a prostitution business via a divisible statute and the plea record.	No; § 1328 is not categorically an aggravated felony; the modified categorical approach was misapplied and must be rejected.
Whether the agency properly applied the modified categorical approach to a divisible statute.	Rosario argues the agency relied on the plea record to determine the conspiracy’s object.	Holder asserts the plea and record show the object-related conduct falls within the aggravated felony.	The modified categorical approach was misapplied; it cannot turn on the conspiracy’s facts to classify the offense.
Whether the agency’s reliance on the statute’s object of the conspiracy was permissible.	Rosario maintains the offense charged was aiding and abetting, not the conspiracy’s object.	The government contends the object of the conspiracy drives the aggravated felony analysis.	Rejected; the proper inquiry does not treat the object of the conspiracy as the basis for aggravated felony categorization.
Whether the Court should apply a broader “relates to” interpretation given common law usage.	Rosario argues the term should be interpreted narrowly to require ownership/control in the prostitution business.	Holder urges a broad interpretation of “relates to.”	Court endorses a plain-meaning approach and finds § 1328 does not categorically relate to ownership/control of a prostitution business.
If not, what is the proper remedy for Rosario’s cancellation of removal claim?	Rosario seeks remand for cancellation consideration.	Government opposes cancellation if aggravated felony status is upheld.	Petition granted; order of removal vacated and case remanded for cancellation-of-removal consideration.

Key Cases Cited

United States v. Zafiro, 945 F.2d 881 (7th Cir.1991) (distinguishes conspiracy from aiding and abetting in liability)
United States v. Loscalzo, 18 F.3d 374 (7th Cir.1994) (aider/abettor may be treated as a principal)
Duenas-Alvarez v. INS, 549 U.S. 183 (U.S. 2007) (aiding and abetting theft falls within the generic term 'theft')
Taylor v. United States, 495 U.S. 575 (U.S. 1990) (upstream origins of applying statutory enhancements; framework for divisible statutes)
United States v. Woods, 576 F.3d 400 (7th Cir.2009) (modified categorical approach limits materials to part of divisible statute)
Desai v. Mukasey, 520 F.3d 762 (7th Cir.2008) (broad interpretation of 'relating to' in immigration context)
Nijhawan v. Holder, 129 S. Ct. 2294 (2009) (circumstance-specific approach discussed for certain aggravated felonies)
In re Kiet Quan Ly, 2004 WL 3187286 (BIA 2004) (unpublished; example of BIA considering related conduct)