Magana-Rodriguez, et al v. Holder, No. 06-72872 (9th Cir. 2010)

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FILED AUG 30 2010 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT ALBERTO MAGANA-RODRIGUEZ, Petitioner, No. 06-72872 Agency No. A028-811-611 v. MEMORANDUM * ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted August 10, 2010 Before: ** O SCANNLAIN, HAWKINS, and IKUTA, Circuit Judges. Alberto Magana-Rodriguez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals ( BIA ) order dismissing his appeal from an immigration judge s decision denying his application for adjustment of * 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). status. We have jurisdiction under 8 U.S.C. § 1252. We grant the petition for review and remand. The BIA denied Magana-Rodriguez s application for adjustment of status, concluding that his guilty plea and compliance with certain elements of a diversion program constituted a conviction for the purposes of 8 U.S.C. § 1101(a)(48), and therefore a controlled substance violation. The BIA, however, did not have the benefit of our intervening decision in Retuta v. Holder, 591 F.3d 1181 (9th Cir. 2010), which held that Congress had intentionally omitted certain types of sanctions from consideration as punishment, penalty, or restraint on . . . liberty under 8 U.S.C. § 1101(a)(48)(A)(ii). We therefore remand for the BIA to reconsider its denial of Magana-Rodriguez s application for adjustment of status in light of Retuta. PETITION FOR REVIEW GRANTED; REMANDED. 2 06-72872

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