                                                                            FILED
                            NOT FOR PUBLICATION                             MAY 26 2015

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


NOE ORTEGA-ORTEGA,                               No. 10-72679

              Petitioner,                        Agency No. A096-531-237

 v.
                                                 MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

              Respondent.


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

                             Submitted May 4, 2015**
                               Pasadena, California

Before: NOONAN, WARDLAW, and MURGUIA, Circuit Judges.

      Noe Ortega-Ortega (Ortega), a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeals’ (BIA) decision affirming the

Immigration Judge’s (IJ) denial of his second application for adjustment of status.



        *
             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).
We have jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the petition for

review.

      The BIA did not err in upholding the IJ’s denial of Ortega’s second

application for adjustment of status and dismissing Ortega’s appeal. First, the BIA

correctly found that Ortega failed to show that a visa was “immediately available”

to him at the time he filed his application. See 8 U.S.C. § 1255(i)(2) (an

applicant’s status may be adjusted when, inter alia, “an immigrant visa is

immediately available . . . at the time the application is filed”). Although a 2A-

preference1 visa was immediately available to Ortega, Ortega was no longer

eligible for it because he had aged-out of that category when he filed his second

application for adjustment of status.

      The BIA properly concluded that the Child Status Protection Act (“CSPA”)

did not provide relief to Ortega because he failed to file his adjustment of status

application within one year of the date his 2A-preference visa became available.

See 8 U.S.C. § 1153(h)(1)(A)-(B) (determining an applicant’s age as “(A) the age

of the alien on the date on which an immigrant visa number becomes available for



      1
        A “2A” preference refers to the preference category for unmarried children
of permanent residents, provided they are under twenty-one years of age. A “2B”
preference refers to the category for unmarried children of permanent residents
who are over the age of twenty-one.

                                           2
such alien . . . but only if the alien has sought to acquire the status of an alien

lawfully admitted for permanent residence within one year of such availability;

reduced by (B) the number of days in the period during which the applicable

petition . . . was pending” (emphasis added)). Ortega’s 2A-preference visa was

available in July of 2003, but it was not until May 22, 2005—nearly two years

later—that he filed his first application for adjustment of status. His second

application for adjustment of status—the application at issue here—was filed even

later, on November 20, 2006. Because Ortega failed to file an application for

adjustment of status within one year of the date his 2A-preference visa became

available, the BIA properly concluded that he was ineligible for adjustment of

status under the CSPA. See Ochoa-Amaya v. Gonzales, 479 F.3d 989, 992 (9th

Cir. 2007).

      Petition DENIED.




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