                                                                              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                            NOT FOR PUBLICATION                               AUG 03 2011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.
