384 F2d 360 Chabolla-Delgado v. Immigration and Naturalization Service

384 F.2d 360

Jose CHABOLLA-DELGADO, Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 21676.

United States Court of Appeals Ninth Circuit.

October 16, 1967.

David C. Marcus, Los Angeles, Cal., for petitioner.

William M. Byrne, Jr., U. S. Atty., Herbert M. Schoenberg, Asst. U. S. Atty. (argued), Los Angeles, Cal., Ramsey Clark, Atty. Gen. of U. S., Washington, D. C., Steve Suffin, Atty., I.N.S., San Francisco, Cal., Joseph Sureck, Regional Counsel, I.N.S., San Pedro, Cal., for respondent.

Before MERRILL and ELY, Circuit Judges, and BYRNE, District Judge.

PER CURIAM:

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1

Petitioner seeks review of an order of deportation affirmed by the Board of Immigration Appeals. He was found subject to deportation under § 241(a) (11) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a) (11), in that he had been convicted of a violation of § 11530 of the California Health and Safety Code, relating to the illicit possession of marijuana.

2

Petitioner contends that he was not "convicted" since, after finding him guilty of the charged offense, the state court had suspended sentence and placed him on probation. We have consistently held to the contrary. Gutierrez v. I.N.S., 323 F.2d 593 (9th Cir.1963), cert. denied 377 U.S. 910, 84 S.Ct. 1171, 12 L.Ed.2d 179 (1964); Wood v. Hoy, 266 F.2d 825 (9th Cir.1959); Arrellano-Flores v. Hoy, 262 F.2d 667 (9th Cir.1958), cert. denied, 362 U.S. 921, 80 S.Ct. 673, 4 L.Ed.2d 740 (1960). See also Kelly v. I.N.S., 349 F.2d 473 (9th Cir.), cert. denied, 382 U.S. 932, 86 S.Ct. 326, 15 L.Ed.2d 344 (1965); Garcia-Gonzales v. I.N.S., 344 F.2d 804 (9th Cir.), cert. denied, 382 U.S. 840, 86 S.Ct. 88, 15 L.Ed.2d 81 (1965).

3

Petitioner contends that deportation under the circumstances of this case constitutes cruel and unusual punishment. Deportation is not punishment within the meaning of the Eighth Amendment, Bugajewitz v. Adams, 228 U.S. 585, 591, 33 S.Ct. 607, 57 L.Ed. 978 (1913), and is civil, not criminal, in nature. Woodby v. I.N.S., 385 U.S. 276, 285, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966); Harisiades v. Shaughnessy, 342 U.S. 580, 594, 72 S.Ct. 512, 96 L.Ed. 586 (1952).

4

The order of deportation is affirmed.