                                                                            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                             NOT FOR PUBLICATION                             APR 01 2010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.




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