Macias v. Holder , 382 F. App'x 639 ( 2010 )

FILED
NOT FOR PUBLICATION JUN 09 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
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
*
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).
immigration judge’s removal order. We have jurisdiction under 8 U.S.C. § 1252.
We grant the petition for review and remand for further proceedings.
The BIA concluded that Macias’s conviction for being under the influence
of a controlled substance pursuant to Cal. Health & Safety Code § 11550 rendered
her ineligible for relief from removal. The BIA, however, did not have the benefit
of our intervening decision in Rice v. Holder, 597 F.3d 952, 957 (9th Cir. 2010),
which held that an individual convicted in state court of using or being under the
influence of a controlled substance and whose conviction is subsequently
expunged is eligible for the same immigration treatment as individuals convicted
of drug possession under the Federal First Offender Act.
We therefore remand for the BIA to reconsider Macias’s eligibility for relief
from removal. See generally INS v. Ventura, 537 U.S. 12, 16-18 (2002).
PETITION FOR REVIEW GRANTED; REMANDED.
2 06-70228