Raul Avendano Pena v. Jefferson Sessions
691 F. App'x 456
| 9th Cir. | 2017Background
- Petitioner Raul Rennan Avendano Pena, a Mexican national, seeks review of BIA’s order affirming IJ denial of adjustment of status under the Child Status Protection Act (CSPA).
- An F2A immigrant visa was available to Pena in May 2005 (priority considerations tied to Jan 20, 1998 priority date).
- Pena filed an I-485 on May 4, 2007; USCIS deemed it abandoned for failure to submit required documentation and denied it.
- Pena later filed a second I-485 on February 29, 2008 (filed before visas for his category became newly available after retrogression).
- Pena turned 21 on March 9, 2008; because he could not claim CSPA protection, his category converted to F2B while retaining his original priority date, and no F2B visa was yet available for that date.
- The IJ and BIA denied relief; the Ninth Circuit denied Pena’s petition for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Pena “sought to acquire” LPR status within one year of visa availability under 8 U.S.C. § 1153(h)(1)(A) | Pena argued his filings (including 2008 filing) show he sought to acquire LPR status | DHS/BIA/IJ argued Pena did not file a timely, valid application within one year of the May 2005 visa availability; his 2007 I-485 was untimely/abandoned | Held: Pena did not seek to acquire LPR within one year of visa availability; CSPA protection unavailable |
| Whether an application filed before a visa becomes available (Feb 29, 2008) satisfies the “within one year” requirement | Pena argued the 2008 filing (before visa availability after retrogression) should be counted to satisfy the one-year rule | DHS/BIA/IJ argued statute requires visa be immediately available when application is filed; filings before availability are ineligible | Held: Applications filed before a visa is available do not satisfy the requirement; pre-availability filings must be dismissed |
| Whether DHS’s 2008 Neufeld memorandum that addresses retrogression is entitled to deference | Pena argued the guidance should not foreclose his alternative timing theory | DHS/BIA/IJ relied on the memorandum to deny Pena relief | Held: Court applied Skidmore deference and found the DHS guidance persuasive and reasonable; BIA properly relied on it |
| Whether Pena may adjust status now given age-out conversion to F2B and current visa bulletin | Pena argued he should retain child status or otherwise adjust | DHS/BIA/IJ argued his category converted to F2B on turning 21 and no visa is available for his priority date | Held: Because CSPA relief is unavailable and no F2B visa is currently available for his priority date, Pena cannot adjust status |
Key Cases Cited
- Skidmore v. Swift & Co., 323 U.S. 134 (agency interpretations in policy guidance entitled to persuasive weight)
- Landin-Molina v. Holder, 580 F.3d 913 (9th Cir. 2009) (discussing deference to agency guidance on CSPA application)