Case: 18-60509 Document: 00515115580 Page: 1 Date Filed: 09/12/2019 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 18-60509 FILED Summary Calendar September 12, 2019 Lyle W. Cayce Clerk UBALDO OLGUIN PADILLA, Petitioner v. WILLIAM P. BARR, U. S. ATTORNEY GENERAL, Respondent Petition for Review of an Order of the Board of Immigration Appeals Before WIENER, HAYNES, and COSTA, Circuit Judges. PER CURIAM: Ubaldo Olguin Padilla is a native and citizen of Mexico admitted to the United States as a lawful permanent resident in 1992. The Board of Immigration Appeals (BIA) affirmed the immigration judge’s (IJ) finding of removability and discretionary denial of Padilla’s application for cancellation of removal. Padilla was found to be removable based on a finding that his 2011 Texas conviction for possession of methamphetamine with intent to deliver was a violation of a state law “relating to a controlled substance” as defined in the Controlled Substances Act (CSA). 8 U.S.C. § 1182(a)(2)(A)(i)(II); see TEX. HEALTH & SAFETY CODE § 481.112. In his petition for review, Padilla contends that § 481.112 does not “relate to” a federally controlled substance because it Case: 18-60509 Document: 00515115580 Page: 2 Date Filed: 09/12/2019 No. 18-60509 punishes, in the least, an offer to sell drugs that turn out to be counterfeit, whereas the CSA does not punish delivery of simulated or fake drugs. See Matter of Sanchez-Cornejo, 25 I. & N. Dec. 273, 275 (BIA 2010). Padilla also challenges the BIA’s denial of his request for cancellation of removal. I. We first address whether Padilla’s state conviction for possession of meth with intent to deliver was an offense “relating to a controlled substance” that rendered him removable. 8 U.S.C. § 1182(a)(2)(A)(i)(II). It was. Amolegbe v. Holder, 319 F. App’x 344, 344-45 (5th Cir. 2009) (holding that a Texas conviction for delivery of cocaine “constitutes a state crime ‘relating to a controlled substance’”). 1 The premise of Padilla’s argument—that delivery under § 481.112 includes an offer to sell fake or counterfeit drugs—is erroneous. Regardless whether an offered substance ends up being counterfeit as a factual matter, in terms of the elements of the offense an offer to sell is an offer to sell an actual Penalty Group 1 drug. See § 481.112(a) (prohibiting the manufacture, delivery, or possession with intent to deliver of “a controlled substance listed in Penalty Group 1”); Stewart v. State, 718 S.W.2d 286, 288 (Tex. Crim. App. 1986) (holding that delivery of a controlled substance by offer to sell “is complete when, by words or deed, a person knowingly or intentionally offers to sell what he states is a controlled substance”) (emphasis added). The nature of the substance ultimately delivered is immaterial and need not be proven. See Iniguez v. State, 835 S.W.2d 167, 171 (Tex. App.—Houston [1st Dist.] 1992) (holding that an offer to sell satisfies § 481.112 “regardless of . . . whether the substance transferred is an actual controlled substance or not”). 1 Although an ...
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