Raul Avendano Pena v. Jefferson Sessions ( 2017 )

FILED
NOT FOR PUBLICATION
MAY 26 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAUL RENNAN AVENDANO PENA, No. 14-70373
Petitioner, Agency No. A089-432-226
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 18, 2017**
San Francisco, California
Before: THOMAS, Chief Judge, WARDLAW, Circuit Judge, and
BENCIVENGO,*** District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Cathy Ann Bencivengo, United States District Judge
for the Southern District of California, sitting by designation.
Raul Rennan Avendano Pena (“Pena”), a native and citizen of Mexico,
petitions for review of a final order of removal issued by the Board of Immigration
Appeals (“BIA”), affirming the Immigration Judge’s (“IJ”) decision denying him
adjustment of status under the Child Status Protection Act (“CSPA”), Pub. L. No.
107–208, 116 Stat. 927 (2002). We have jurisdiction pursuant to 8 U.S.C.
§ 1252(a). We deny the petition.
1. The BIA correctly concluded that Pena cannot avail himself of the
CSPA’s benefits because Pena had not, as required, “sought to acquire the status of
an alien lawfully admitted for permanent residence within one year of” the date on
which an immigrant visa number became available to him. 8 U.S.C.
§ 1153(h)(1)(A). A family second-preference-A (“F2A”) immigrant visa became
available to Pena in May 2005. Pena did not apply to adjust his status to lawful
permanent residence until May 4, 2007, nearly two years later, when he filed an
Application to Adjust Status (Form I-485) with the United States Citizenship and
Immigration Service (“USCIS”). USCIS deemed Pena’s application abandoned
and denied it when Pena failed to submit required documentation within the time
allotted. Because Pena failed to “s[eek] to acquire” lawful permanent resident
(“LPR”) status “within one year of” the date on which an immigrant visa number
became available to him, he cannot now take advantage of the CSPA to maintain
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his status as a “child” under the Immigration and Nationality Act (“INA”). See 8
U.S.C. §§ 1101(b)(1); 1153(h)(1)(A). Accordingly, the BIA correctly affirmed the
IJ’s determination that Pena cannot maintain his “child” status through the CSPA,
now that he has “aged out.”
2. The BIA did not err in rejecting Pena’s claim that he actually “sought
to acquire” LPR status “within one year of” visa availability by filing a second
application to adjust status on February 29, 2008, eight months before F2A visas
for Mexican nationals with Pena’s priority date became newly available after a
period of retrogression. First, the phrase “within one year” does not include the
year before a visa becomes available. The INA requires a visa applicant to show
that “an immigrant visa is immediately available to [him] at the time the
application is filed.” 8 U.S.C. § 1255(i)(2)(B) (emphasis added). Thus, an
application to adjust status filed before a visa becomes available must be
dismissed.
Second, the BIA properly relied on Department of Homeland Security
(“DHS”) guidance to conclude that “the facts of [Pena]’s case are not covered by
the 2008 USCIS memorandum issued by Donald Neufeld.” We owe
“interpretations contained in policy statements, agency manuals, and enforcement
guidelines” deference under Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).
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Landin-Molina v. Holder, 580 F.3d 913, 920 (9th Cir. 2009). In 2008, DHS
published a policy memorandum containing guidance on applying the CSPA in
cases where visa numbers have retrogressed and then become newly available. See
Memorandum, Donald Neufeld, Acting Assoc. Dir., Domestic Operations, to Field
Leadership, Subject: Revised Guidance for the Child Status Protection Act
(CSPA), 2008 WL 1963663, at *5 (Apr. 30, 2008). Applying this guidance, the IJ
and BIA correctly concluded that Pena was not entitled to use the later visa
availability date from which to calculate the CSPA’s one-year filing deadline. The
guidance memorandum is a persuasive and reasonable interpretation of law that is
consonant with the CSPA’s aim of making the visa application process more
predictable and less arbitrary, and with the CSPA’s incentives for promptly filing
adjustment applications. Therefore, we defer to the DHS guidance memorandum,
and conclude that the IJ and BIA properly relied upon it in rejecting Pena’s
contrary interpretation of the CSPA’s one-year filing requirement.
3. The BIA did not err in concluding that Pena cannot adjust status
because a visa is currently unavailable to him. Because Pena cannot qualify for the
CSPA’s protections, Pena’s visa preference category automatically converted to
the family second-preference-B (“F2B”) category upon his twenty-first birthday,
on March 9, 2008. Pursuant to 8 U.S.C. § 1153(h)(3), Pena retained his original
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priority date of January 20, 1998 after conversion. The Department of State’s Visa
Bulletin reveals that an F2B visa is not yet available for Pena’s priority date.
Therefore, the BIA correctly concluded that Pena “has untimely filed for
adjustment of status because he is not presently eligible for any immigrant visa.”
See 8 U.S.C. § 1255(i)(2).
PETITION DENIED.
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