Marcelino Echeverria-Barboza v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION AUG 03 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARCELINO ECHEVERRIA- No. 10-71738
BARBOZA,
Agency No. A079-805-425
Petitioner,
v. MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 15, 2011**
Pasadena, California
Before: RYMER, TALLMAN, and IKUTA, Circuit Judges.
Appellant Marcelino Echeverria-Barboza petitions for review of the Board
of Immigration Appeals (BIA) order denying him adjustment of status under the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Child Status Protection Act (CSPA), Pub. L. No. 107-208, 116 Stat. 927 (2002).
We deny the petition.
On July 27, 1992, Echeverria’s father, a lawful permanent resident of the
United States, filed an F2A immigrant visa petition on Echeverria’s behalf. See 8
U.S.C. § 1153(a)(2)(A). When his priority date became current on August 1, 1997,
Echeverria was older than twenty-one and had thus “aged-out” of the F2A
preference category. See 8 U.S.C. § 1101(b)(1) (an F2A beneficiary must be a
“child” under age twenty-one). No further petition or application for adjustment of
status was filed by Echeverria or his father. Echeverria claims he is nonetheless
entitled to protection under the CSPA.
It is undisputed that Echeverria was over age twenty-one at the time his
priority date became current and a visa was then available to him. Because he had
aged-out of the F2A preference category, he could not claim a visa as an adult
beneficiary under his father’s petition. Nor does the CSPA provide Echeverria
relief because he sought to adjust status on January 28, 2004, well over one year
after his visa number became available on August 1, 1997. See 8 U.S.C. §
1153(h)(1)(A); see also Park v. Mukasey, 514 F.3d 1384 (9th Cir. 2008) (adopting
the opinion and order of the district court in Park v. Gonzalez, 450 F. Supp. 2d
1153, 1158, 1163 (D. Or. 2006)). Even if we were inclined to accept Echeverria’s
theory that he only needed to adjust status within one year of the CSPA’s date of
enactment, the record shows he nevertheless failed to do so. He did not apply for
adjustment of status until January 28, 2004, roughly a year and a half after the law
was enacted on August 6, 2002. For these reasons, there is no legitimate basis for
extending CSPA protections to him.
Accordingly, his petition is DENIED.