### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

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 B ucio Ricon (Bucio), a native and c itizen 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 Un i t e d S t a t e s 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. Gonzale s , 4 8 4 F .3d 712, 714 (5th Cir. 2007), that his 2009 U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D October 30, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 13-60027 Document: 00512425069 Page: 1 Date Filed: 10/30/2013No. 13-60027

conviction did not constitute a violation of law related to a controlled s ubstance 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 c ertain specified criminal offenses, we have jurisdiction to consider t h e l e g al qu e s t i o n w h e t h e r B u c i o ’ s past conviction constitutes a violation relati n g to a controlled substance. See Danso v. G onzales , 489 F.3d 709, 712-13 (5th Cir. 2007). Section 1182(a)(2)(A)(i)(II) provides that an alien is inadmissible i f he has been convicted of o r h a s admitted “committing a cts which constitute e ssential elements of” a violation of a controlled substance law of a s t a t e, the United States, or a foreign county. The judgment for B ucio ’ s solicitation conviction specifically states t hat the offense involved c ocaine a nd the written and signed Statement of the Defendant on Plea of Guilty to Non-Sex O ffense, reflects that Bucio pleaded guil t y t o Solicitation to Deliver a Controlled Substance, specifically cocaine. T hus, his offense involved a controlled s ubstance. See, e.g., Peters v . Ashcroft , 383 F .3d 302, 306-09 ( 5th Cir. 2 004). Bucio’s reliance on Gonzales , 484 F.3d at 714, is m isplaced. Bucio has shown no error in the BIA’s conclusion that h i s W ashington conviction qualified as an o ffense under § 1182(a)(2), rendering him inadmissible. See Danso , 489 F.3d at 712-13. Bucio additionally argues that, pursuant to the doctrine a n n o u n ced in Rosenberg v. Fleuti , 3 74 U

. S

. 4 4 9 (1963), he should have been charged as a
remo v a b l e l a wful permanent resident rather than as an inadmissible alien because h is visit out of t he United States was brief, casual, and innocent. As the BIA noted, we have he l d t h at the Illegal I mmigration Reform and Immigrant Responsibility Act of 1996 superceded the F leuti doctrine. Malagon de Fuentes v. Gonzales , 462 F.3d 498, 501 (5th Cir. 2006).

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Bucio’s petition for review of the order of the BIA is DENIED. In a ddition, B u c i o moves for an order directing Immigration and Customs Enf o rc e m e n t (I C E ) to show cause why this court should not impose sanctions, instruct ICE to return Bucio to the United States, or admonish I C E f o r its usurpation of judicial authority. A s tay is not a utomatic but is an exercise of j udicial 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 c ourt, and Bucio has p roduced n o 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