Petition for Review of an Order of the Board of Immigration
WIENER, HAYNES, and COSTA, Circuit Judges.
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
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.
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 Fed.Appx. 344, 344-45 (5th
Cir. 2009) (holding that a Texas conviction for delivery of
cocaine "constitutes a state crime 'relating to a
controlled substance'"). 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
points to no Texas case applying § 481.112 to an offer
to sell that did not propose the transfer of an actual
drug. Rodriguez v. State, 879 S.W.2d
283 (Tex. App.-Houston [14th Dist.] 1994), involved an offer
to sell undercover agents an actual controlled
substance-cocaine-but flour ended up being delivered.
Rodriguez, 879 S.W.2d at 284. The appellate court
reversed the defendant's conviction for delivery under
§ 482.112, concluding that the more specific statute
addressing delivery of simulated drugs (§ 482.002)
applied. Id. at 285-86. If anything,
Rodriguez shows that § 481.112 does not reach
offers to sell counterfeit drugs as the court said the
simulated drug offense governed. And although holding that
the more specific offense displaced § 481.112 because
the actual delivery was for fake drugs, it still recognized
that as a general matter the defendant "was subject to
conviction under Section 481.112 for offering to sell a
controlled substance." Id. at 285.
does Whitfield v. State, 916 S.W.2d 49 (Tex.
App.-Houston [1st. Dist.] 1996), support Padilla's
argument that § 481.112 covers conduct unrelated to a
controlled substance. Like Rodriguez,
Whitfield involved a transaction between several
coconspirators and undercover agents for what was held out to
be cocaine but turned out not to be a controlled substance at
all (it was duct-taped dominoes). Id. at 50-51. As
in Rodriguez, Whitfield was convicted under §
481.112 for delivery (by offer to sell) of a controlled
substance and argued on appeal that he should instead have
been convicted under § 482.002 for delivering a
simulated controlled substance. Id. at 51. The state
court held that Whitfield was subject to conviction under
§ 481.112 for "delivery by offering to
sell a controlled substance." Id. at
52 (emphasis in original).
caselaw thus confirms what the statutory language and common
sense tell us: offering to sell a drug is a crime only when
the seller purports to be offering a real controlled
substance. Because the state requires an offer to sell a
Penalty Group 1 substance, § 481.112 relates to "a
drug or other substance, or immediate precursor, included in
[the CSA] schedule[s]." 21 U.S.C. § 802(6). Padilla
fails to show that the BIA erred in finding that his Texas
drug delivery conviction renders him removable. See
Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir.
jurisdiction to review the BIA's discretionary decision
to deny cancellation of removal. See Tula Rubio v.
Lynch, 787 F.3d 288, 290 (5th Cir. 2015). Padilla cites
only factfinding error by the IJ, not legal or constitutional
error, and, in any event, the IJ's error was not adopted
or relied upon by the BIA, whose order we review. See
Vasquez-Martinez v. Holder, 564 F.3d 712, 716 (5th Cir.
2009); Sattani v. Holder, 749 F.3d 368, 370, 372
(5th Cir. 2014); Mikhael v. I.N.S., 115 F.3d 299,
302 (5th Cir. 1997).
petition for review is DENIED.