
    Maria Socorro AGASINO, Petitioner-Appellant, v. Michael CHERTOFF, Secretary of the Department of Homeland Security, Respondent-Appellee.
    No. 04-16038.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted April 11, 2005.
    Decided Aug. 24, 2005.
    Nancy E. Miller, Esq., Robert L. Reeves & Associates, Pasadena, CA, Philippe Dwelshauvers, Fresno, CA, for Petitioner-Appellant.
    Jocelyn Burton, Esq., Office of the U.S. Attorney, San Francisco, CA, for Respondent-Appellee.
    Before: FERGUSON, NOONAN, and RYMER, Circuit Judges.
    
      
       Michael Chertoff, Secretary of the Department of Homeland Security, is substituted for Charles H. DeMore. Fed. R.App. P. 43(c)(2).
    
   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The memorandum disposition filed August 16, 2005 is hereby withdrawn.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.

RYMER, Circuit Judge,

dissenting.

I dissent for the same reasons that I dissented in Cordes v. Gonzales, — F.3d -, No. 04-15988, 2005 WL 2060851 (9th Cir.2005) — and for the additional reason that Agasino does not raise an equal protection challenge on appeal. Otherwise, the issues she does raise lack merit. Accordingly, I would affirm.  