                                                                           FILED
                             NOT FOR PUBLICATION                            AUG 30 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



ALBERTO MAGANA-RODRIGUEZ,                        No. 06-72872

               Petitioner,                       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.




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