IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-60027

Summary Calendar

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

UnitedStates 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

United States Court of Appeals

Fifth Circuit

F I L E D

October 30, 2013

Lyle W. Cayce

Clerk

* 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.

 Case: 13-60027 Document: 00512425069 Page: 1 Date Filed: 10/30/2013
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).

2

 Case: 13-60027 Document: 00512425069 Page: 2 Date Filed: 10/30/2013
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.

3

 Case: 13-60027 Document: 00512425069 Page: 3 Date Filed: 10/30/2013