Alberto Magana-Rodriguez v. ERIC H. HOLDER, Jr., Attorney General

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALBERTO MAGANA-RODRIGUEZ,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 06-72872
Agency No. A028-811-611
MEMORANDUM*
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
FILED
AUG 30 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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06-72872 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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