                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-1644


OSCAR ALBERTO ROBLES TENORIO,

                Petitioner,

           v.

ERIC H. HOLDER, JR., Attorney General,

                Respondent.



On Petition for Review of an Order of the Board of Immigration
Appeals.


Argued:   March 23, 2011                    Decided:   August 26, 2011


Before GREGORY, AGEE, and KEENAN, Circuit Judges.


Affirmed by unpublished opinion.       Judge Gregory wrote         the
opinion, in which Judge Agee and Judge Keenan concurred.


ARGUED: Ofelia Calderón, Xavier F. Racine, MARKS, CALDERÓN,
DERWIN & RACINE, PLC, Arlington, Virginia, for Petitioner.
Woei-Tyng Daniel Shieh, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.       ON BRIEF: Tony West,
Assistant Attorney General, Civil Division, Francis W. Fraser,
Senior Litigation Counsel, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.


Unpublished opinions are not binding precedent in this circuit.
GREGORY, Circuit Judge:

       Robles challenges his denial of Lawful Permanent Resident

(LPR) status under the Child Status Protection Act.                       Because

Robles first petitioned for LPR status when he was twenty-eight

(28)   years   old,   and    because    he    was   not   associated    with   any

previous “original” petition or priority date, we affirm.



                                        I.

       Oscar Alberto Robles-Tenorio was born in El Salvador on May

11, 1977.      At an unknown date years later, his father, Oscar

Alberto Robles, was approved for an I-140 petition to adjust his

immigration    status       to   LPR.        That   application,       which   was

sponsored by the father’s employer, was assigned a priority date

of July 7, 1997.      At that time, Robles was twenty (20) years old

and residing in El Salvador.                 On February 28, 2001, Robles’

father adjusted his status to become an LPR.                    At that time,

Robles was twenty-four (24) years old and still residing in El

Salvador.

       On May 4, 2005, at the age of twenty-seven (27), Robles

entered the United States without inspection in Texas but was

apprehended by Customs and Border Patrol agents and issued a

Notice to Appear for the next day.               On August 9, 2005, Robles’

father filed an I-130 petition for his son on the grounds that

Robles was the unmarried child of an LPR.                  Robles was twenty-

                                        2
eight (28) years old when this petition was filed.                           Before the

Immigration Judge (IJ), Robles conceded removability, but sought

to adjust derivatively his status given his father’s LPR, using

the Child Status Protection Act (CSPA).                       Specifically, Robles

invoked subsections 1153(h)(3) and 1255(i) of the Immigration

and Nationality Act (INA).           8 U.S.C. §§ 1153(h)(3), 1255(i).

      On September 20, 2007, the IJ denied Robles’ application

for LPR, reasoning that Robles was not protected under the CSPA

because he did not apply within one year of his father’s new

status   becoming      available      --       and    because       Robles    was     not

physically     present    in   the    United         States    by   the   year      2000.

Robles appealed to the Board of Immigration Appeals (BIA), which

dismissed his claim on April 10, 2009.                  The BIA agreed with the

IJ’s reasoning about the one year time bar, but did not address

the   issue    of   whether    Robles      was       exempt     from   the     physical

presence requirement of section 1255(i).

      Robles    then     petitioned     this     Court        for   review,     and    we

initially remanded for reconsideration in light of Matter of

Wang, 25 I. & N. Dec. 28 (BIA 2009), per the parties’ agreement.

Wang addressed the meaning of section 1153(h) and the operation

of its one year time requirement.               In 2010, the BIA affirmed its

prior ruling once more and Robles petitioned our Court again.




                                           3
                                              II.

                                              A.

      We “review the BIA’s legal conclusions de novo,” and “‘we

afford     substantial       —    but       not       unlimited      —    deference         to   the

Board’s decision.’”          Crespin-Valladares v. Holder, 632 F.3d 117,

124 (4th Cir. 2011) (citations omitted).

      Under   the       Immigration          and       Nationality         Act,   an    LPR      can

petition to obtain a visa for an alien relative by filing an I-

130 petition.           Once the petition is approved, it contains a

preference     category          and    a     priority         date:       “The     ‘preference

category’ corresponds to the familial relationship between the

alien and the person filing the I-130 form.                                The priority date

is   the   date    on    which     the      approved         I-130       petition      was   filed

. . . .”      Drax      v.    Reno,         338       F.3d    98,    114    (2d     Cir.     2003)

(citations        omitted).             “Within         the     preference          categories,

immigrant visas are issued on a first-come-first-served basis.

An alien’s place in line is determined by his or her ‘priority

date[]’ . . . .”          Kooritzky v. Reich, 17 F.3d 1509, 1511 (D.C.

Cir. 1994).

      Children and spouses are covered by the second preference

category and subject to certain conditions and numerical limits.

8    U.S.C.   § 1153(a)(2).                 Namely,          these       offspring      must      be

considered     “children”          in       order       to     be    protected         by    these



                                                  4
immigration provisions. 1   Generally, “[t]he term ‘child’ means an

unmarried person under twenty-one [21] years of age . . . .”      8

U.S.C. § 1101(b)(1)(A).     But the CSPA amended the law, so that

certain offspring who are over twenty-one (21) years old are

still treated as “children.”      The relevant provision reads a

follows:

     (1) In general. For purposes of subsections (a)(2)(A)
         [offspring   of  LPR]   and   (d)  [offspring not
         otherwise covered], a determination of whether an
         alien satisfies the age requirement in the matter
         preceding subparagraph (A) of section 101(b)(1)
         [is under twenty-one] shall be made using--

           (A) the age of the alien on the date on which an
               immigrant visa number becomes available for
               such alien (or, in the case of subsection
               (d), the date on which an immigrant visa
               number became available for the alien’s
               parent), but only if the alien has sought to
               acquire the status of an alien lawfully
               admitted for permanent residence [LPR status]
               within one year of such availability; reduced
               by

           (B) the number of days in the period during which
               the    applicable   petition   described   in
               paragraph (2) was pending.

     1
       We employ the term “offspring” since it describes the
familial relationship without connoting an immigrant’s factual
or legal age. We find this more accurate than the term “child”
and less vague than “alien,” which the CSPA uses somewhat
interchangeably.
     Offspring who are under twenty-one (21) years old and not
otherwise covered by that second preference category or other
bases for immigration are still “entitled to the same status,
and the same order of consideration provided in the respective
subsection, if accompanying or following to join, [as] the
spouse or parent.” 8 U.S.C. § 1153(d).


                                  5
       (2) Petitions described.               The    petition       described    in
           this paragraph is--

              (A) with respect to a relationship described in
                  subsection (a)(2)(A), a petition filed under
                  section    204    [8   U.S.C.   § 1154]   for
                  classification   of  an   alien  child  under
                  subsection (a)(2)(A); or

              (B) with respect to an alien child who is a
                  derivative beneficiary under subsection (d),
                  a petition filed under section 204 [8 U.S.C.
                  § 1154] for classification of the alien’s
                  parent under subsection (a), (b), or (c).

       (3) Retention of priority date.    If the age of an
           alien is determined under paragraph (1) to be 21
           years of age or older for the purposes of
           subsections (a)(2)(A) [offspring of LPR] and (d)
           [offspring not otherwise covered], the alien’s
           petition shall automatically be converted to the
           appropriate category and the alien shall retain
           the original priority date issued upon receipt of
           the original petition.

       (4) Application to self-petitions.   Paragraphs                          (1)
           through (3) shall apply to self-petitioners                          and
           derivatives of self-petitioners.

8 U.S.C. § 1153(h) (emphasis added).

       Robles argues that he should “automatically be converted”

to    his    father’s   LPR      status   under       1153(h)(3).          Namely,     he

contends that subsections 1153(h)(1) and 1153(h)(3) should be

read        “separate[ly]”       since        they      are     not        meaningfully

“incorporate[ed],”         and    concludes          that     the    one    year      time

requirement in (h)(1) does not apply to him.                         App. Br. at 10,

16.     Robles    relies     primarily    on    an     older,       unpublished    case,

Matter of Garcia, 2006 WL 2183654 (BIA 2006) (unpublished), and


                                          6
argues that the subsequent case of Wang was wrongly decided and

unreasonable.        Finally, Robles acknowledges that there is no

legislative        history     pertaining        specifically        to     subsection

1153(h)(3), but notes that the CSPA’s general purpose was to

help   “aliens,     who    through      no   fault    of    their    own,    lose   the

opportunity to obtain [a] . . . visa.”                 H.R. Rep. No. 107-45, at

2 (2001), reprinted in 2002 U.S.C.C.A.N. 640, 641.

       The Government contends that the BIA rightly denied Robles

LPR status because he did not apply for a status change within

one    year   of    the    date   his     father’s      visa      became    available.

Specifically, the Government claims that “[t]hough th[e] date

[Robles’ father’s visa became available] is undetermined, it is

earlier   than     the    December   6,      2001    date   [on    which]    Robles[]’

father adjusted his status that was used by the agency, and

which still rendered Robles[]’ application over 2 years late.”

Gov. Br. at 18-19.           The Government points to the logic of Wang,

and argues that even if subsection 1153(h)(3) is ambiguous, the

BIA’s interpretation is still reasonable and valid under Chevron

U.S.A. Inc. v. NRDC, Inc., 467 U.S. 837 (1984).




                                             7
                                              B.

       Section 1153(h) is far from a model of clarity. 2                                It is

unclear whether the text and structure of (h)(1) and (h)(3) can

be    reconciled     in   any   coherent          or    reasonable         fashion.     Given

this, we are particularly mindful of the “longstanding principle

of construing any lingering ambiguities in deportation statutes

in favor of the alien.”              Ins v. Cardoza-Fonseca, 480 U.S. 421,

449 (1987).          Nonetheless, the Government urges us to broadly

construe       the    statute     so     as        to    apply       the     one-year    time

requirement from (h)(1) to (h)(3) and to all alien offspring.

       Thankfully, we need not reach such interpretive questions

here, because it is clear that Robles falls outside of the plain

terms of 1153(h)(3). Robles claims he should “automatically be

converted” to his father’s LPR status under subsection (h)(3).

But    the    benefits    of    (h)(3)    contain             an   important    limitation:

eligible      offspring    “shall      retain           the    original      priority    date

issued       upon    receipt    of     the        original         petition.”     8     U.S.C.

§ 1153(h) (emphasis added).               The plain meaning and premise of

the CSPA is that parents originally apply on behalf of their


       2
        The BIA itself acknowledged that “[u]nlike sections
[1153](h)(1) and (2), which when read in tandem clearly define
the universe of petitions that qualify for the ‘delayed
processing formula,’ the language of section [1153](h)(3) does
not expressly state which petitions qualify for automatic
conversion and retention of priority dates.”  Wang 25 I. & N.
Dec. 28 at 17.


                                              8
offspring   --    who    can    subsequently        retain    those    benefits   in

certain circumstances.           The     use   of   the   terms     “original”    and

“retain” is dispositive.          Indeed, offspring can hardly “retain”

something they never “originally” had or were associated with in

the first place.

     The     CSPA’s        implementing        regulation         confirms       this

straightforward reading of the plain text: “if the child reaches

the age of twenty-one [21] prior to the issuance of a visa to

the principal alien parent, a separate petition will be required

[and] . . . the original priority date will be retained if the

subsequent petition is filed by the same petitioner.”                     8 C.F.R.

§ 204.2(a)(4) (emphasis added).                Similarly, the Ninth Circuit

has interpreted the CSPA to protect offspring who were “under

21[] at the time a petition for permanent resident status was

filed on their behalf.”          Ochoa-Amaya v. Gonzales, 479 F.3d 989,

992 (9th Cir. 2007) (emphasis added, citations omitted).                          See

also David Weissbrodt & Laura Danielson, Immigration Law and

Practice    164   (6th    ed.    2011)    (“The     process    of     applying    for

family-sponsored         immigration      begins       when    the     prospective

immigrant’s relative submits Form I-130.”) (citations omitted). 3


     3
       The legislative history further supports this clear-cut
interpretation.  Namely, Congress aimed to determine whether an
offspring constituted a “child” based on his or her “age as of
the time an immigrant visa petition is filed on his or her
behalf.” 2002 U.S.C.C.A.N. at 641-42 (emphasis added).  Robles’
(Continued)
                                          9
       In this case, Robles had neither an “original” petition to

which he can reach back, nor an associated priority date which

he     can       “retain.”     Rather,       the    first    time     Robles’      father

petitioned on his son’s behalf was in August 2005, when Robles

was twenty-eight (28) years old.                   Even if we treated that 2005

petition as Robles’ “original” one, he could not have obtained a

predated          priority   date    then,    since    he    was      not   legally    or

factually a child at that point.                   Consequently, Robles does not

fall under the plain terms of subsection (h)(3) of the CSPA.

While Robles was twenty (20) years old when his father obtained

a 1997 priority date, the parties do not argue -- and nothing in

the record suggests -- that Robles was originally associated

with       his    father’s   employer-sponsored        petition       or    that   Robles

applied          for   residency    within   one    year    of   an    immigrant     visa

number becoming available then. 4




father did not petition on his son’s behalf until his son was
already twenty-eight (28) years old.    By choosing to wait so
long before petitioning, Robles is in a materially different
situation from those children who, “through no fault of their
own, lose the opportunity to obtain [a] . . . visa,” while
waiting for their applications to be processed. Id. at 641.
Thus, Robles’ unique circumstances are also outside the scope of
Congress’ core purpose.
       4
       We cannot help but note that the CSPA is also unclear
about what it means for an immigrant visa number to become
“available for” an offspring under subsection 1153(h)(1)(A).
But Robles does not argue that his father’s initial employment-
sponsored petition was meaningfully “available for” him or that
(Continued)
                                             10
                                  III.

      Next, section 1255(i) requires offspring to be physically

present in the United States by the year 2000:

      [An alien] who, in the case of a beneficiary of a
      petition for classification, or an application for
      labor certification, described in subparagraph (B)
      that was filed after January 14, 1998, is physically
      present in the United States on the date of the
      enactment of the LIFE Act Amendments of 2000 [by
      December 21, 2000]; may apply to the Attorney General
      for the adjustment of his or her status to that of an
      alien lawfully admitted for permanent residence. . . .

8 U.S.C. § 1255(i)(1)(C) (emphasis added).       But the implementing

regulation further specifies that:

      If the qualifying visa petition or application for
      labor certification was filed after January 14, 1998,
      the alien must have been physically present in the
      United States on December 21, 2000. This requirement
      does not apply with respect to a spouse or child
      accompanying or following to join a principal alien
      who is a grandfathered alien as described in this
      section.

8 C.F.R. § 1245.10(a)(1)(ii) (emphasis added).

      Robles argues the BIA failed to address his eligibility for

LPR under section 1255(i) and that his derivative application is

not   subject   to   physical   presence   requirements.   While   the

Government does not directly analyze this issue, the BIA found




he could have been added retroactively to that              petition.
Therefore, we need not resolve the issue at this time.


                                   11
it need not reach this question because the IJ properly denied

Robles’ application for adjustment of status in the first place.

     We   agree   with   Robles   that    the   IJ   erroneously   imposed   a

physical presence requirement -- since the regulation by its

very terms does not apply to child applicants.              But as the BIA

and Government rightly suggest, this error does not affect the

outcome of the case.      Even if Robles had applied from abroad in

August 2005, he still would have fallen outside the plain terms

of subsection 1153(h)(3), since he was not associated with any

original petition.




                                    IV.

     For these reasons, Robles’ petition for review is denied

and the BIA’s 2010 decision is

                                                                   AFFIRMED.




                                    12
