Maria Socorro AGASINO, Petitioner-Appellant, v. Michael CHERTOFF, Secretary of the Department of Homeland Security, Respondent-Appellee, 142 F. App'x 309

ORDER The memorandum disposition filed August 16, 2005 is hereby withdrawn. The Clerk shall file the attached memorandum disposition. MEMORANDUM Maria Socorro Agasino, a native of the Philippines, appeals the District Court’s denial of her 28 U.S.C. § 2241 habeas petition challenging the constitutionality of her final order of removal. Agasino pleaded nolo contendere to grand theft embezzlement. On appeal, Agasino contends that the District Court erred when it (1) applied retroactively the amended aggravated felony definition under

section 321 of the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), Pub L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996) and (2) rejected her due process challenge to the retroactive application of the amended aggravated felony definition. In accordance with Alvarez-Barajas v. Gonzales, 418 F.3d 1050 (9th Cir.2005), we construe Agasino’s habeas petition as if it were a timely filed petition for review with this court. Because Agasino’s case is materially indistinguishable from the petitioner’s in Cordes v. Gonzales, — F.3d-, No. 04-15988, 2005 WL 2060851 (9th Cir.2005), we grant the petition on the merits. PETITION GRANTED.