Unpublished Disposition, 849 F.2d 1475 (9th Cir. 1988)

ORDER

The original disposition filed on May 11, 1988, is withdrawn and the attached Memorandum is filed herewith.

The time for filing a petition for rehearing and/or en banc suggestion from this Memorandum shall run from the date of the filing of this order.

MEMORANDUM^** 

Petitioner Alfredo Farias-Castillo was found deportable on two grounds: (1) entry without inspection (see 8 U.S.C. § 1251(a) (2)); and (2) conviction for narcotics offense (see 8 U.S.C. § 1251(a) (11)). At the deportation hearing held on June 19, 1985, he conceded that he had entered without inspection and that he had been convicted of the narcotics offense. He sought relief, however, under section 212(c), 8 U.S.C. § 1182(c). The IJ and the BIA found that, while conceivably Farias-Castillo might be eligible for section 212(c) relief based on the second ground for deportation, section 212(c) relief is not available for deportation based on entry without inspection. See Cabasug v. INS, 837 F.2d 880 (9th Cir. 1988). Farias-Castillo agrees that section 212(c) relief is not available for deportation based on entry without inspection, but contends that deportation based on that ground is unjustified.

On March 1, 1976, petitioner was convicted of illegal importation of a controlled substance in violation of 21 U.S.C. §§ 952, 960, and 963. He was sentenced to 15 months in prison; all but 4 months were suspended. Federal probation supervision was waived on the condition that Farias-Castillo return to Mexico and not enter the United States without permission. The departure to Mexico was an alternative to supervised probation in the United States. Petitioner has not shown that he objected to or contested that alternative to supervised probation, nor that it was in any way unlawful. His departure to Mexico was thus not an exclusion, an expulsion, or a deportation. It was a departure to comply with an alternative probation requirement that he apparently agreed to, or at least did not oppose. The day after leaving this country, he reentered without inspection.

In characterizing his departure to Mexico in 1976, Farias-Castillo claims to have been "thrown out of the country without an administrative deportation hearing of any kind." In fact, his departure was an alternative to remaining in the United States under probationary supervision, and he departed at his own election. Under these circumstances, there was certainly no "gross miscarriage of justice" associated with his departure. Hernandez-Almanza v. INS, 547 F.2d 100, 102 (9th Cir. 1976).

Farias-Castillo clearly reentered without inspection. The record plainly indicates that he entered this country by "crossing the international border, without inspection, at a location not designated as a port of entry." Id. at 102. This violated the inspection requirement of 8 U.S.C. § 1251(a) (2).

We reject Farias-Castillo's argument that the Government is estopped from asserting entry without inspection as a ground for deportation and thus denying him section 212(c) relief. His contention is that his departure in 1976 was tainted with such procedural shortcomings that he should not be deportable based on entry without inspection, and thus section 212(c) relief should not be withheld on that basis. As we have already stated, however, we do not find that his departure was in any way procedurally infirm and, therefore, the Government was entitled to rely upon the entry-without-inspection offense as a ground for denying section 212(c) relief. We reject petitioner's remaining contentions as well.

AFFIRMED.