                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  February 17, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                              No. 03-10437
                          Conference Calendar



ELENO MARTINEZ ALVAREZ,

                                      Plaintiff-Appellant,

versus

CASITA MARIA, INC., A Texas Domestic Business Corporation;
MARIA BRIONES; JUSTIN LUCIO; JANE DOE; JOE GRANADOS;
CHRISTINA MARTINEZ,

                                      Defendants-Appellees.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 3:02-CV-02442
                      --------------------

Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Eleno Martinez Alvarez, federal inmate #25777-177, appeals

the district court’s dismissal of his complaint pursuant to FED.

R. CIV. P. 12(b)(6) for failure to state a claim.   Alvarez’s

motion for appointment of counsel is DENIED.

     Alvarez reiterates his contention that the defendants’

failure to file with the Immigration and Naturalization Service a



     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                            No. 03-10437
                                 -2-

Form I-212 on his behalf resulted in his conviction and

incarceration.

     A Form I-212 must be filed by a deported alien to gain

permission from the Attorney General to reapply for admission to

the United States.    United States v. Sanchez-Milam, 305 F.3d 310,

312-13 (5th Cir. 2002), cert. denied, 537 U.S. 1139 (2003); see

8 C.F.R. 212.2.   The Form I-212 must be approved prior to entry

to the United States, and the submission of an I-212 does not

automatically result in consent by the Attorney General.       See

Sanchez-Milam, 305 F.3d at 312-13.

     Alvarez’s appeal is without arguable merit, is frivolous,

and is DISMISSED.    Howard v. King, 707 F.2d 215, 219-20 (5th Cir.

1983); 5TH CIR. R. 42.2.   The district court’s dismissal of

Alvarez’s complaint for failure to state a claim and the

dismissal of this appeal as frivolous count as “strikes” under 28

U.S.C. § 1915(g).    We caution Alvarez that if he accumulates

three such “strikes,” he will not be able to proceed in forma

pauperis in any civil action or appeal filed while he is

incarcerated or detained in any facility unless he is under

imminent danger of serious physical injury.    Adepegba v. Hammons,

103 F.3d 383, 388 (5th Cir. 1996).

     APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING ISSUED;

MOTION DENIED.
