Corona Duarte v. Holder , 373 F. App'x 675 ( 2010 )

FILED
NOT FOR PUBLICATION APR 01 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CECILIA CORONA DUARTE, No. 07-71327
Petitioner, Agency No. A090-089-593
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 16, 2010 **
Before: SCHROEDER, PREGERSON, and RAWLINSON, Circuit Judges.
Cecilia Corona Duarte, a native and citizen of Mexico, petitions for review
of the Board of Immigration Appeals’ order dismissing her appeal from an
immigration judge’s order denying her application for a § 212(c) waiver. Our
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
IH/Research
jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of law,
Saravia-Paguada v. Gonzales, 488 F.3d 1122, 1129 n.10 (9th Cir. 2007), and we
dismiss in part and deny in part the petition for review.
We lack jurisdiction to review Corona Duarte’s contention that there is
insufficient evidence in the record to establish that she committed an offense that
would render her ineligible for § 212(c) relief under § 440(d) of the Antiterrorism
and Effective Death Penalty Act (“AEDPA”) because Corona Duarte failed to
exhaust this issue before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 677 (9th
Cir. 2004).
Although we have jurisdiction to review Corona Duarte’s contention that the
application of § 440(d) of the AEDPA has an impermissibly retroactive effect in
her case, see Saravia-Paguada, 488 F.3d at 1130, her contention lacks merit
because she was convicted after AEDPA’s effective date, id. at 1132-33 (the past
relevant conduct for the retroactivity analysis is the alien’s decision whether to
enter a guilty plea or to proceed to trial, and not the commission of the underlying
criminal conduct).
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
IH/Research 2 07-71327