                                                                           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                            NOT FOR PUBLICATION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


                                         2
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).


                                          3
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


                                          4
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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