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

3363
COUNSEL

Stephen Shaiken, San Francisco, California, for the petitioner.

Aviva Poczter and Robbin K. Blaya, United States Department of Justice, Washington, D.C., for the respondent. 

OCHOA-AMAYA v. GONZALES 3365
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 jurisdiction to review BIA’s denial of Ochoa-Amaya’s motion to

reopen . . . . ,” delete the final sentence: 

BIA’s interpretation of an immigration law is entitled to deference “unless that interpretation is contrary 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 Congress.” 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 interpretation 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 construction of the immigration law it administers.

Simeonov, 371 F.3d at 535. 

The mandate shall issue forthwith.

3366 OCHOA-AMAYA v. GONZALES
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 adjustment 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, including Ochoa-Amaya. In February 1997, Ochoa-Amaya effectively 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 returning 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. 

OCHOA-AMAYA v. GONZALES 3367
Ochoa-Amaya conceded removability, but requested cancellation of removal under 8 U.S.C. § 1229b(b)(1) or, in the alternative, 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 adjudicated. 

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 con2

8 U.S.C. § 1255(i) allows certain otherwise ineligible aliens to adjust

their status if, among other things, “an immigrant visa is immediately

available.” 

3368 OCHOA-AMAYA v. GONZALES
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 priority 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 OchoaAmaya’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 OchoaAmaya’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 discretion. 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. Fernandez v. Gonzales, 439 F.3d 592, 595 (9th Cir. 2006). We

review de novo BIA’s determination of a purely legal question. 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. Natural Res. Defense Council, Inc., 467 U.S. 837, 843 (1984). 

OCHOA-AMAYA v. GONZALES 3369
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 protection for aliens who were children (under 21) at the time a petition 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 parents, (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

3370 OCHOA-AMAYA v. GONZALES
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 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 petition 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 subsection (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 derivative 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,

OCHOA-AMAYA v. GONZALES 3371
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). Section 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, OchoaAmaya’s interpretation “would render the formula superfluous, 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 altogether. Ochoa-Amaya’s interpretation would indeed render

the formula superfluous, in violation of a basic rule of statutory 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, OchoaAmaya 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. 

3372 OCHOA-AMAYA v. GONZALES
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. 

OCHOA-AMAYA v. GONZALES 3373