Cordes

Patricia Ann Cordes (“Cordes”), a native and citizen of the United Kingdom, appeals the District Court’s denial of her 28 U.S.C. § 2241 habeas petition challenging the constitutionality of her final order of removal. Cordes pled guilty to dissuading a witness with threat of force and to inducing false testimony, in violation of sections 136.1(c)(1) and 137(c) of the California Penal Code, respectively. The Board of Immigration Appeals (“BIA”) determined that Cordes’s conviction constituted an aggravated felony under the amended definition of aggravated felony in section 321 of the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), Pub.L. No. 104-208, 110 Stat. 3009-546 (Sept. 30, 1996), and ordered her removed.

On appeal, Cordes contends that the District Court erred when it (1) applied retroactively the amended definition of aggravated felony under sections 321(a)(3) and 321(a)(ll) of IIRIRA; (2) rejected her due process challenge to the retroactive application of the amended aggravated felony definition; and (3) denied her equal protection challenge to the unavailability of relief from removal under section 212(c) of the Immigration and Nationality Act…

concurring in part and dissenting in part:

It is rational to distinguish between aliens who were deportable and those who were not when they entered a plea of guilty to a crime that IIRIRA retroactively makes an aggravated felony because those who — like Cordes — were not deportable could not have relied on the availability of § 212(c) relief, whereas those who — unlike Cordes — were deportable could have relied on that possibility. That’s why, in a nutshell, there is no equal protection violation. Accordingly, while I agree that United States v. Velasco-Medina, 305 F.3d 839 (9th Cir.2002), forecloses Cordes’s claim that she is eligible for § 212(c) relief under INS v. St. Cyr, 533 U.S. 289 , 121 S.Ct. 2271 , 150 L.Ed.2d 347 (2001), and that the retroactive application of IIRIRA’s definition of aggravated felony to render her deportable did not violate due process, I disagree that Cordes’s ineligibility for § 212(c) relief violates equal protection.

First, the majority concludes that Cordes as a lawful permanent resident is similarly situated to those permanent residents who are entitled to § 212(c) relief under St. Cyr . This is not so, because she and Velasco-Medina were not…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PATRICIA ANN CORDES, 

Petitioner-Appellant, v. No. 04-15988 ALBERTO R. GONZALES,* Attorney General; MICHAEL CHERTOFF,** D.C. No. Secretary of the Department of  CV-03-05580-

OWW/LJO

Homeland Security; NANCY ALCANTAR, Interim Director of the ORDER AND San Francisco District Office for OPINION the Bureau of Immigration and Customs Enforcement, Respondents-Appellees.  Appeal from the United States District Court for the Eastern District of California Oliver W. Wanger, District Judge, Presiding

Argued and Submitted April 11, 2005—San Francisco, California

Filed August 24, 2005

Before: Warren J. Ferguson, John T. Noonan, and Pamela Ann Rymer, Circuit Judges.

*Alberto R. Gonzales is substituted for his predecessor, John Ashcroft, as Attorney General of the United States. Fed. R. App. P. 43(c)(2). **Michael Chertoff is substituted for his predecessor, Tom Ridge, as Secretary of the Department of Homeland Security. Fed. R. App. P. 43(c)(2).

11285 11286 CORDES v. GONZALES Opinion by Judge…