United States v. 2007-03-21 | 05-74693 | OCHOA-AMAYA VGONZALES | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 JOSE MANUEL OCHOA-AMAYA, No. 05-74693
Petitioner, Agency No.
v. A74-323-162
ALBERTO R. GONZALES, Attorney ORDER 
General, AMENDING
Respondent. OPINION AND
AMENDED
OPINION

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
October 16, 2006—San Francisco, California
Filed December 29, 2006
Amended March 22, 2007
Before: Robert R. Beezer, Diarmuid F. O’Scannlain, and
Stephen S. Trott, Circuit Judges.
Opinion by Judge Trott
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COUNSEL
Stephen Shaiken, San Francisco, California, for the petitioner.
Aviva Poczter and Robbin K. Blaya, United States Depart-
ment of Justice, Washington, D.C., for the respondent.
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ORDER
The opinion filed December 29, 2006, is hereby amended
as follows:
At the slip opinion page 20052, and 472 F.3d 674, 677 (9th
Cir. 2006), in the paragraph beginning with “We have juris-
diction to review BIA’s denial of Ochoa-Amaya’s motion to
reopen . . . . ,” delete the final sentence:
BIA’s interpretation of an immigration law is enti-
tled to deference “unless that interpretation is con-
trary to the plain and sensible meaning of the
statute.” Simeonov v. Ashcroft, 371 F.3d 532, 535
(9th Cir. 2004).
And replace with the following sentence:
Where congressional intent is clear, we must “give
effect to the unambiguously expressed intent of Con-
gress.” Chevron U.S.A., Inc. v. Natural Res. Defense
Council, Inc., 467 U.S. 837, 843 (1984).
At the slip opinion pages 20054-55, and 472 F.3d at 678,
in the paragraph beginning with “Ochoa-Amaya’s interpreta-
tion stems from an erroneous reading of subsection (h)(2) of
8 U.S.C. § 1153, which describes the petitions . . . . ,” delete
the final sentence:
Because BIA’s interpretation is not contrary to the
plain meaning of the statute, we defer to BIA’s con-
struction of the immigration law it administers.
Simeonov, 371 F.3d at 535.
The mandate shall issue forthwith.
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OPINION
TROTT, Circuit Judge:
Jose Ochoa-Amaya seeks judicial review of the Board of
Immigration Appeals’ (BIA) final order denying his motion to
reopen to allow consideration of his application for adjust-
ment of status pursuant to 8 U.S.C. § 1255(i). BIA rejected
the motion because it determined that Ochoa-Amaya did not
qualify as a child under the Child Status Protection Act
(CSPA), Pub. L. No. 107-208, 116 Stat. 927 (2002), and so
could not show statutory eligibility for adjustment of status.
We agree with BIA’s interpretation of the relevant language
of the CSPA, and deny Ochoa-Amaya’s petition.
I
BACKGROUND
Ochoa-Amaya, a Mexican citizen born in 1978, entered the
United States without inspection in 1985. In August 1992,
Ochoa-Amaya’s father, a lawful permanent resident, filed a
visa petition on behalf of his wife and minor children, includ-
ing Ochoa-Amaya. In February 1997, Ochoa-Amaya effec-
tively terminated his pending application by marrying his 74
year-old U.S. citizen bride. Eventually, all family members
except Ochoa-Amaya became lawful permanent residents.
On July 13, 1997, after apprehending Ocho-Amaya when
he attempted illegally to reenter the United States after return-
ing to Mexico for his brother’s funeral, the Immigration and
Naturalization Service (INS) charged Ochoa-Amaya under 8
U.S.C. § 1182(a)(6)(A)(i) for being an alien present in the
United States without admission or inspection.1 At a hearing,
1The INS was abolished effective March 1, 2003, and its functions
transferred to the newly formed Department of Homeland Security. See 6
U.S.C. § 542. For ease of reference, we refer to the relevant agency as the
INS.
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Ochoa-Amaya conceded removability, but requested cancella-
tion of removal under 8 U.S.C. § 1229b(b)(1) or, in the alter-
native, voluntary departure. Ochoa-Amaya originally intended
to apply for adjustment of status due to his marriage, but his
elderly wife passed away before the visa petition was adjudi-
cated.
In February 2004, Ochoa-Amaya’s case proceeded to the
United States Immigration Court in San Francisco, where
Ochoa-Amaya applied for cancellation of removal on the
ground of hardship to his lawful permanent resident father
and United States citizen daughter. To support his application,
he presented evidence of his continuous presence in the
United States for ten years, his good moral character, and the
exceptional hardship his family members would suffer if he
were removed. Concluding Ochoa-Amaya failed to show the
requisite level of hardship, the immigration judge denied
Ochoa-Amaya’s application for cancellation of removal and
granted voluntary departure, a decision subsequently upheld
by BIA.
In May 2005, Ochoa-Amaya’s father filed an I-130 form
(Petition for Alien Relative) on Ochoa-Amaya’s behalf. The
following day, Ochoa-Amaya, now a 26-year old widower,
moved BIA to reopen proceedings so he could apply for
adjustment of status “based on an immediately available visa
through his father.”2
In his motion, Ochoa-Amaya claimed he qualified as a
child under the CSPA. Section 3 of the CSPA allows certain
aliens to adjust their status as children of lawful permanent
residents even if they are no longer under the age of 21. The
laudable purpose of this provision is to prevent children of
United States citizens from “aging out” while waiting for con-
28 U.S.C. § 1255(i) allows certain otherwise ineligible aliens to adjust
their status if, among other things, “an immigrant visa is immediately
available.”
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sideration such that they find themselves at the end of a long
waiting list for family first preferences. Ochoa-Amaya sought
the status of a child because, according to a State Department
bulletin in effect at the time the motion was pending, a visa
for a child of a lawful permanent resident was immediately
available if the petition had a priority date of April 22, 1998,
or earlier. In contrast, a visa for an unmarried son who did not
qualify as a child could only receive a visa if his priority date
was March 15, 1992, or earlier. Using the August 1992 prior-
ity date, Ochoa-Amaya could show a visa was “immediately
available” only if he qualified as a child under the CSPA.
BIA denied Ochoa-Amaya’s motion. Rejecting Ochoa-
Amaya’s interpretation of the CSPA’s formula for calculating
whether an alien qualifies as a child, BIA concluded that
Ochoa-Amaya failed to meet his burden to establish prima
facie eligibility for adjustment of status under 8 U.S.C.
§ 1255(i). Ochoa-Amaya timely filed a petition for review.
II
STANDARD OF REVIEW
We have jurisdiction to review BIA’s denial of Ochoa-
Amaya’s motion to reopen to apply for adjustment of status.
de Martinez v. Ashcroft, 374 F.3d 759, 761 (9th Cir. 2004).
We review the denial of a motion to reopen for abuse of dis-
cretion. Id. (citing Shaar v. INS, 141 F.3d 953, 955 (9th Cir.
1998)). In a motion to reopen, it is the movant’s burden to
establish prima facie eligibility for the relief sought. Fernan-
dez v. Gonzales, 439 F.3d 592, 595 (9th Cir. 2006). We
review de novo BIA’s determination of a purely legal ques-
tion. de Martinez, 374 F.3d at 761. Where congressional
intent is clear, we must “give effect to the unambiguously
expressed intent of Congress.” Chevron U.S.A., Inc. v. Natu-
ral Res. Defense Council, Inc., 467 U.S. 837, 843 (1984).
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III
DISCUSSION
BIA may deny motions to reopen for various reasons,
including statutory ineligibility, which was the only basis for
BIA’s denial of Ochoa-Amaya’s motion. See Fernandez, 439
F.3d at 599 (setting forth grounds on which BIA may deny
motion to reopen). Thus, we focus on BIA’s interpretation of
the CSPA. See Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th
Cir. 2004).
[1] Congress enacted the CSPA to provide age-out protec-
tion for aliens who were children (under 21) at the time a peti-
tion for permanent resident status was filed on their behalf.
Padash v. INS, 358 F.3d 1161, 1167 (9th Cir. 2004). Indeed,
the CSPA was necessary “to address the ‘enormous backlog
of adjustment of status (to permanent residence) applications’
which had developed at the INS.” Id. at 1172 (quoting H.R.
Rep. No. 107-45, *2, reprinted in 2002 U.S.C.C.A.N. 640,
641, 2001 WL 406244).
[2] Under the CSPA, Ochoa-Amaya may qualify to have
his status adjusted, provided, “(1) he was a ‘child’ on the date
upon which the immigrant visa became available for his par-
ents, (2) he applied for adjustment of status within one year
of availability, and (3) he ‘aged out’ while waiting for his
application to be adjudicated.” Id. at 1167. Specifically, the
CSPA contains the following formula for determining
whether an alien qualifies as a child:
[A] determination of whether an alien [qualifies as a
child] 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) of this section, the date on which an
immigrant visa number became available for the
alien’s parent), but only if the alien has sought to
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acquire the status of an alien lawfully admitted for
permanent residence within one year of such avail-
ability; reduced by (B) the number of days in the
period during which the applicable petition described
in paragraph (2) was pending.
8 U.S.C. § 1153(h)(1)(A)-(B). The dispute in this case centers
on the phrase “the period during which the applicable petition
. . . was pending.” Id. Ochoa-Amaya argues that the phrase
refers to the period of time between the date the visa petition
was filed with INS and the date the visa became available
through the State Department. BIA reasons instead that the
proper time frame is the period between the date the visa peti-
tion was filed with INS and the date the petition was approved
by INS. We agree with BIA.
[3] Ochoa-Amaya’s interpretation stems from an erroneous
reading of subsection (h)(2) of 8 U.S.C. § 1153, which
describes the petitions to which the formula in subsection
(h)(1) applies:
The petition described in this paragraph is
(A) with respect to a relationship described in sub-
section (a)(2)(A) of this section [1153], a petition
filed under section 1154 of this title for classification
of an alien child under subsection (a)(2)(A) of this
section; or
(B) with respect to an alien child who is a deriva-
tive beneficiary under subsection (d) of this section,
a petition filed under section 1154 of this title for
classification of the alien’s parent under subsection
(a), (b), or (c) of this section.
Ochoa-Amaya reasons that because the petition description
refers to a family relationship described in § 1153(a)(2)(A),
which includes an alien child of a lawful permanent resident,
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and because that section addresses the worldwide allocation
of visas, a matter within the purview of the State Department,
the reference in the formula to “the period during which the
petition is pending” includes the time until the visa became
available through the State Department. While subsection
(h)(2) does refer to a relationship described in § 1153, it
clearly identifies a petition filed under § 1154, which includes
the I-130 petition adjudicated by INS. See Padash, 358 F.3d
at 1167 (9th Cir. 2004) (noting CSPA’s protections extend to
an alien who, among other things, “ ‘aged out’ while waiting
for his application to be adjudicated”) (emphasis added). Sec-
tion 1154 makes no mention of visa availability through the
State Department. Consequently, “the period during which the
petition is pending” refers to the time between the date INS
received the petition and the date INS approved the petition,
and has nothing to do with the availability of a visa through
the State Department.
[4] More importantly, as BIA correctly noted, Ochoa-
Amaya’s interpretation “would render the formula superflu-
ous, as it would in all cases calculate to the age on the filing
date of the visa petition, so long as status was sought within
one year of availability.” If Congress wanted to freeze an
alien’s age to the date the petition was filed, regardless of any
delays, Congress would likely have avoided a formula alto-
gether. Ochoa-Amaya’s interpretation would indeed render
the formula superfluous, in violation of a basic rule of statu-
tory interpretation. See United States v. Wenner, 351 F.3d
969, 975 (9th Cir. 2003) (noting the fundamental principle of
statutory construction that a statute should not be construed to
render certain words or phrases mere surplusage). Because we
agree with BIA’s interpretation of the CSPA, and because that
was the only issue presented in the motion to reopen, Ochoa-
Amaya has not met his burden of establishing his prima facie
eligibility for the relief sought. Fernandez, 439 F.3d at 595.
Accordingly, BIA did not abuse its discretion in denying his
motion to reopen.
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IV
CONCLUSION
BIA is correct that the CSPA protects children from aging
out while their petitions are pending before the INS, but that
the Act does not address the time during which a visa is made
available through the Department of State.
PETITION DENIED.
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