Alberto MAGANA-RODRIGUEZ, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent, 393 F. App'x 517

MEMORANDUM 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 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. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.