Reyes-Espitia v. Holder

360 F. App'x 914

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 30, 2009
• Docket: 06-74590
• Status: Unpublished

Opinion

MEMORANDUM **

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 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, 594 F.3d 1069 (9th Cir.2010) (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.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.