                                                                           FILED
                             NOT FOR PUBLICATION                            JUL 25 2011

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




                             FOR THE NINTH CIRCUIT



SALVADOR RUIZ MAGANA,                            No. 08-72031

               Petitioner,                       Agency No. A092-034-740

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



                      On Petition for Review of an Order of the
                          Board of Immigration Appeals

                             Submitted July 12, 2011 **

Before:        SCHROEDER, ALARCÓN, and LEAVY, Circuit Judges.

       Salvador Ruiz Magana, a native and citizen of Mexico, petitions for review

of the Board of Immigration Appeals’ (“BIA”) order sustaining the government’s

appeal from an immigration judge’s (“IJ”) grant of cancellation of removal. Our

jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of law,


          *
             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).
and for substantial evidence the agency’s findings of fact. Brezilien v. Holder, 569

F.3d 403, 411 (9th Cir. 2009). We deny in part, and dismiss in part, the petition for

review.

      Magana’s contention that his conviction for violation of California Health &

Safety Code § 11360(a) is not categorically a controlled substance offense under

8 U.S.C. § 1227(a)(2)(B)(i) is foreclosed by our decision in Mielewczyk v. Holder,

575 F.3d 992, 997 (9th Cir. 2009) (“[O]ur statement that ‘solicitation is not a

[removable] offense under [8 U.S.C. § 1227(a)(2)(B)(i)],’ applied only to

violations of generic solicitation laws.”) (citing Coronado-Durazo v. INS, 123 F.3d

1322, 1326 (9th Cir. 1997)).

      Contrary to Magana’s contentions, the BIA did not engage in improper fact-

finding under 8 C.F.R. § 1003.1(d)(3)(iv), or violate the standard of review that

governs review of the IJ’s factual findings. See 8 C.F.R. § 1003.1(d)(3)(i). The

BIA’s determination that Magana’s evidence of rehabilitation was insufficient to

merit cancellation of removal is a discretionary determination that we lack

jurisdiction to review. See Mejia v. Gonzales, 499 F.3d 991, 999 (9th Cir. 2007)

(stating that the BIA’s consideration of alien’s rehabilitation falls within its

discretionary authority and is not subject to review).

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.


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