Kong Hernandez v. Eric Holder, Jr.

MEMORANDUM

Kong Sun Hernandez, a lawful permanent resident, petitions for review of the Board of Immigration Appeals’s (BIA’s) dismissal of her appeal from an immigration judge’s (IJ’s) order of removal. Hernandez contends that the IJ and the BIA erred in finding that she had acted “for commercial advantage” within the meaning of 8 U.S.C. § 1101 (a)(43)(K)(ii) when she committed a federal prostitution offense, and therefore erred in classifying her offense as an aggravated felony. She also contends that the IJ unfairly precluded her from presenting evidence negating the inference of commercial advantage. Our disposition of the second issue obviates the need to address the first.

In September 2004, Hernandez was charged in a four-count indictment with conspiracy to smuggle and transport illegal aliens, transportation in furtherance of prostitution, bringing illegal aliens to the United States for financial gain, and smuggling illegal aliens. Hernandez ultimately pleaded guilty in September 2005 to the charge of transportation in furtherance of prostitution, in violation of 18 U.S.C. § 2421 . She was sentenced for this offense to six months of imprisonment, followed by three years…