FILED
NOT FOR PUBLICATION DEC 30 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RIGOBERTO REYES-ESPITIA, No. 06-74590
Petitioner, Agency No. A077-279-970
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 15, 2009 **
Before: GOODWIN, WALLACE, and FISHER, Circuit Judges.
Rigoberto Reyes-Espitia, a native and citizen of Mexico, petitions for review
of the Board of Immigration Appeals’ order dismissing his appeal from an
immigration judge’s decision finding him ineligible for adjustment of status. Our
*
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).
JTK/Research
jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of law,
Altamirano v. Gonzales, 427 F.3d 586, 591 (9th Cir. 2005), and we deny in part
and dismiss in part the petition for review.
Reyes-Espitia’s contention that a conviction under California Health &
Safety Code § 11360(a) does not categorically constitute a controlled substance
offense under 8 U.S.C. § 1182(a)(2)(A)(i)(II) is foreclosed by Mielewczyk v.
Holder, 575 F.3d 992, 997-98 & n.1 (9th Cir. 2009) (removability based on
conviction under a law relating to a controlled substance does not turn on whether
the law includes solicitation offenses); see also Hernandez-Aguilar v. Holder, No.
06-71945, 2009 WL 4067644 (9th Cir. Nov. 25, 2009) (applying same conclusion
to 8 U.S.C. § 1182(a)(2)(A)(i)(II)).
We lack jurisdiction to consider Reyes-Espitia’s contention regarding the
Federal First Offender Act, 18 U.S.C. § 3607, because he failed to exhaust this
contention before the agency. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th
Cir. 2004).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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