                                                                       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disposition filed on June 9, 2010, is withdrawn and a superseding memorandum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                            NOT FOR PUBLICATION                             NOV 14 2011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.




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