                                                                           FILED
                              NOT FOR PUBLICATION                           DEC 30 2009

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




                              FOR THE NINTH CIRCUIT



 RIGOBERTO REYES-ESPITIA,                         No. 06-74590

               Petitioner,                        Agency No. A077-279-970

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

               Respondent.



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

                             Submitted December 15, 2009 **

Before:        GOODWIN, WALLACE, and FISHER, Circuit Judges.

        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



          *
             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).

JTK/Research
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, No.

06-71945, 2009 WL 4067644 (9th Cir. Nov. 25, 2009) (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.




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