FILED
UNITED STATES COURT OF APPEALS NOV 14 2011
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S . CO U RT OF AP PE A LS
REYNA MACIAS, No. 06-70228
Petitioner, Agency No. A079-394-965
v.
ORDER
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.
Respondent's petition for panel rehearing is granted. The memorandum
disposition filed on June 9, 2010, is withdrawn and a superseding memorandum
disposition will be filed concurrently with this order.
FILED
NOT FOR PUBLICATION NOV 14 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
REYNA MACIAS, No. 06-70228
Petitioner, Agency No. A079-394-965
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 25, 2010**
Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.
Reyna Macias, a native and citizen of Mexico, petitions for review of the
Board of Immigration Appeals' ('BIA') order dismissing her appeal from an
immigration judge's removal order. We have jurisdiction under 8 U.S.C. y 1252.
*
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).
We review de novo questions of law, Nunez-Reyes v. Holder, 646 F.3d 684, 688
(9th Cir. 2011) (en banc), and we deny the petition for review.
The BIA correctly determined that Federal First Offender Act ('FFOA')
treatment is not available for Macias's 'under the influence' conviction under Cal.
Health & Safety Code y 11550(a). See Nunez-Reyes, 646 F.3d at 695 (FFOA
exception not available for 'under the influence' convictions). As a result, Macias
is not eligible for cancellation of removal, see 8 U.S.C. y 1229b(b)(1)(C),
adjustment of status, see 8 U.S.C. yy 1182(a)(2)(A)(i)(II) and 1255(a), or voluntary
departure, see 8 U.S.C. y 1229c(b)(1)(B).
Macias has waived any challenge regarding the sufficiency of the conviction
record. See Rizµ v. Holder, 629 F.3d 1083, 1091 n.4 (9th Cir. 2011) (contentions
not raised in the opening brief are deemed waived).
PETITION FOR REVIEW DENIED.
2 06-70228