                                                                            FILED
                             NOT FOR PUBLICATION                             JAN 21 2010

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



 DORIS CARDOZA-FUENTES,                           No. 07-73151

               Petitioner,                        Agency No. A040-006-393

   v.
                                                  MEMORANDUM *
 ERIC H. HOLDER Jr., Attorney General,

               Respondent.



                       On Petition for Review of an Order of the
                           Board of Immigration Appeals

                             Submitted January 11, 2010 **

Before:        BEEZER, TROTT, and BYBEE, Circuit Judges.

        Doris Cardoza-Fuentes, a native and citizen of El Salvador, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal

from an immigration judge’s order denying her application for relief under former



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes that this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).

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section 212(c), 8 U.S.C. § 1182(c). Our jurisdiction is governed by 8 U.S.C.

§ 1252. We review de novo questions of law and constitutional claims.

Vasquez-Zavala v. Ashcroft, 324 F.3d 1105, 1107 (9th Cir. 2003). We deny in part

and dismiss in part the petition for review.

       The government did not need to charge Cardoza-Fuentes as removable

pursuant to 8 U.S.C. § 1227(a)(2)(B)(i) in her notice to appear (“NTA”) for the

BIA to conclude that she was ineligible for relief on this ground. See United States

v. Gonzalez-Valerio, 342 F.3d 1051, 1054-55 (9th Cir. 2003).

       Cardoza-Fuentes’ equal protection challenge fails because she was convicted

by plea agreement after the effective date of the Anti-Terrorism and Effective

Death Penalty Act (“AEDPA”) and is therefore not similarly situated to those

permanent residents who could have relied upon the availability of 212(c) relief

because they entered pleas prior to AEDPA’s passage. See Dillingham v. INS, 267

F.3d 996, 1007 (9th Cir. 2001) (to succeed on an equal protection challenge, the

petitioner must establish that his treatment differed from that of similarly situated

persons).

       We need not reach Cardoza-Fuentes’ contention that she is not removable

for having been convicted of an aggravated felony under 8 U.S.C.

§ 1227(a)(2)(A)(iii) because she conceded removability under 8 U.S.C.


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§ 1182(a)(2)(C) and the BIA denied her application for a 212(c) waiver under 8

U.S.C. § 1227(a)(2)(B)(i).

       We lack jurisdiction to review Cardoza-Fuentes’ contention that the NTA is

deficient and that she is eligible for cancellation of removal under 8 U.S.C.

§ 1229b(a) because she failed to exhaust these arguments before the BIA. See

Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).

       PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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