Handing Out Condoms Isn’t Removable Offense

CHICAGO (CN) - An immigrant from the Dominican Republic will not face deportation after serving time for distributing condoms to Minnesota brothels.

Manuel de Jesus Familia Rosario, a lawful permanent resident since 1999, pleaded guilty in November 2007 to aiding and abetting a conspiracy involving "importation into the United States of any alien for the purpose of prostitution, or for any other immoral purpose."

At sentencing, the government conceded that Familia Rosario was "a minor participant" and agreed to a short jail sentence. But when Familia Rosario was released, he had to fight removal proceedings.

The government argued that Familia Rosario had committed a "crime involving moral turpitude" through his involvement in the conspiracy to procure alien prostitutes.

Familia Rosario argued that he was eligible for cancelation of removal because he was a permanent resident for five years and was not convicted of an aggravated felony.

But an immigration judge and board of immigration appeals found that "an offense that relates to the owning, controlling, managing or supervising of a prostitution business" constitutes an aggravated felony and denied cancellation of removability.

The 7th Circuit reversed Wednesday.

"While the plea agreement showed that Familia Rosario had knowledge of the object of the conspiracy and aided and abetted the conspiracy, it stretches the bounds of logic to suggest that his conduct, distributing condoms, was conduct that 'related to' the owning, controlling, managing or supervising of a prostitution business," Judge Ann Claire Williams wrote for the court.

"While condoms are mandatory for the operation of prostitution businesses in some jurisdictions ... and are certainly 'essential' in the sense that their use among commercial sex workers has proven to help stem the spread of HIV and other diseases ... we note that there was no regulation requiring their use in this case, and that the business of prostitution has historically been able to be managed, owned, controlled and supervised without such precautions," she added.

Familia Rosario is married to a U.S. citizen with two children, one of whom has lawful permanent resident status.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit