Alejandro Bucio Ricon v. Eric Holder, Jr. , 543 F. App'x 483 ( 2013 )

Case: 13-60027 Document: 00512425069 Page: 1 Date Filed: 10/30/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 30, 2013
No. 13-60027
Summary Calendar Lyle W. Cayce
Clerk
ALEJANDRO BUCIO RICON,
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A078 904 806
Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
Alejandro Bucio Ricon (Bucio), a native and citizen of Mexico, petitions for
review of the dismissal by the Board of Immigration Appeals (BIA) of his appeal
of an order of removal. The BIA determined that Bucio was inadmissible to the
United States under 8 U.S.C. § 1182(a)(2)(A)(i)(II), because his 2009 Washington
conviction for Unlawful Solicitation to Deliver a Controlled Substance qualified
as a violation of law related to a controlled substance. Bucio argues, relying on
United States v. Gonzales, 484 F.3d 712, 714 (5th Cir. 2007), that his 2009
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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No. 13-60027
conviction did not constitute a violation of law related to a controlled substance
because the Washington crime of solicitation is a separate and distinct offense
from the state narcotics laws.
Although 8 U.S.C. § 1252(a)(2)(C) generally prohibits our review of a final
order of removal against an alien who is removable by reason of having
committed certain specified criminal offenses, we have jurisdiction to consider
the legal question whether Bucio’s past conviction constitutes a violation relating
to a controlled substance. See Danso v. Gonzales, 489 F.3d 709, 712-13 (5th Cir.
2007).
Section 1182(a)(2)(A)(i)(II) provides that an alien is inadmissible if he has
been convicted of or has admitted “committing acts which constitute essential
elements of” a violation of a controlled substance law of a state, the United
States, or a foreign county. The judgment for Bucio’s solicitation conviction
specifically states that the offense involved cocaine and the written and signed
Statement of the Defendant on Plea of Guilty to Non-Sex Offense, reflects that
Bucio pleaded guilty to Solicitation to Deliver a Controlled Substance,
specifically cocaine. Thus, his offense involved a controlled substance. See, e.g.,
Peters v. Ashcroft, 383 F.3d 302, 306-09 (5th Cir. 2004). Bucio’s reliance on
Gonzales, 484 F.3d at 714, is misplaced. Bucio has shown no error in the BIA’s
conclusion that his Washington conviction qualified as an offense under
§ 1182(a)(2), rendering him inadmissible. See Danso, 489 F.3d at 712-13.
Bucio additionally argues that, pursuant to the doctrine announced in
Rosenberg v. Fleuti, 374 U.S. 449 (1963), he should have been charged as a
removable lawful permanent resident rather than as an inadmissible alien
because his visit out of the United States was brief, casual, and innocent. As the
BIA noted, we have held that the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 superceded the Fleuti doctrine. Malagon de Fuentes
v. Gonzales, 462 F.3d 498, 501 (5th Cir. 2006).
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No. 13-60027
Bucio’s petition for review of the order of the BIA is DENIED. In addition,
Bucio moves for an order directing Immigration and Customs Enforcement (ICE)
to show cause why this court should not impose sanctions, instruct ICE to return
Bucio to the United States, or admonish ICE for its usurpation of judicial
authority. A stay is not automatic but is an exercise of judicial discretion based
on the circumstances of the case. Nken v. Holder, 556 U.S. 418, 433-34 (2009).
Further, ICE violated no order of this court, and Bucio has produced no evidence
that ICE effectuates removals in order to thwart rulings on stay motions. The
motion is DENIED.
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