                                                                           FILED
                              NOT FOR PUBLICATION                           DEC 07 2009

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




                              FOR THE NINTH CIRCUIT



 J. REFUGIO CEJA-RIVERA, aka Jose                 No. 07-71782
 Rivera,
                                                  Agency No. A072-294-331
               Petitioner,

   v.                                             MEMORANDUM *

 ERIC H. HOLDER Jr., Attorney General,

               Respondent.



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

                             Submitted November 17, 2009 **

Before:        ALARCÓN, TROTT, and TASHIMA, Circuit Judges.

        Jose Refugio Ceja-Rivera, 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 to adjust status due to his

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

LA/Research
controlled substance offenses. We have jurisdiction under 8 U.S.C. § 1252.

Reviewing de novo the agency’s legal determination, see Aguiluz-Arellano v.

Gonzales, 446 F.3d 980, 983 (9th Cir. 2006), we deny the petition for review.

       We deny as moot Ceja-Rivera’s request to hold this case in abeyance for

proceedings in de Jesus Melendez v. Gonzales, 503 F.3d 1019 (9th Cir. 2007),

r’hearing denied.

       We agree with the agency’s conclusion that Ceja Rivera’s second controlled

substance offense is not amenable to treatment under the Federal First Offenders

Act, 18 U.S.C. §3607. See id. at 1025-27. Ceja-Rivera’s contention that his

second offense does not constitute a conviction for immigration purposes is not

persuasive. See id.

       PETITION FOR REVIEW DENIED.




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