Attias v. Crandall, No. 18-56629 (9th Cir. 2020)
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After USCIS denied plaintiff's application for lawful-permanent-resident status by finding that he failed to continuously maintain lawful status prior to the filing of his application and was thus ineligible for an adjustment of status pursuant to 8 U.S.C. 1255(c)(2), plaintiff filed suit alleging that his lapse in lawful status was excused.
The Ninth Circuit affirmed the district court's grant of summary judgment to the USCIS and held that plaintiff was ineligible for adjustment of status to lawful-permanent-resident status because he failed to establish that his lapse in lawful immigration status was "through no fault of his own or for technical reasons." The panel held that a "technical violation" occurs under 8 C.F.R. 245.1(d)(2)(ii) only if the violation is a consequence or effect of USCIS's inaction on a pending application. In this case, a "technical violation" occurs only if the alien's application to maintain lawful status is ultimately granted. The panel concluded that the text is not "genuinely ambiguous" and noted that it need not grant Auer deference. The panel stated that plaintiff's lapse in lawful status was not caused by USCIS's inaction. Rather, plaintiff's lapse resulted from his substantive ineligibility for an extension of his B-1 visa.
Court Description: Immigration. Affirming the district court’s grant of summary judgment to the United States Citizenship and Immigration Services (USCIS), the panel held that Haim Attias was ineligible for adjustment of status to lawful-permanent-resident status because he failed to establish that his lapse in lawful immigration status was “through no fault of his own or for technical reasons.” Under 8 U.S.C. § 1255(c)(2), an alien is barred from adjusting status if he “has failed (other than through no fault of his own or for technical reasons) to maintain continuously a lawful status since entry into the United States.” As relevant here, an implementing regulation, 8 C.F.R. § 245.1(d)(2)(ii), interprets the phrase, “other than through no fault of his own or for technical reasons,” to mean a “technical violation resulting from inaction of [USCIS].” Also as relevant here, only a lapse in status exceeding 180 days will preclude adjustment. Attias was granted a B-1 employment visa, and the day before the visa expired, he applied for an extension of the visa. More than a year later, USCIS denied the extension. Attias had also filed an application for adjustment of status based on his employer’s petition for an immigrant visa on his behalf. After Attias’s visa extension was denied, USCIS denied the adjustment application on the ground that he had ATTIAS V. CRANDALL 3 failed to maintain valid legal status for a period of over 180 days. The district court agreed with USCIS, relying on USCIS’s Policy Manual, which interprets 8 C.F.R. § 245.1(d)(2)(ii) to mean that if an application for a visa extension is ultimately denied, an alien’s legal status lapses on the visa’s expiration date, and no “technical violation” resulting from USCIS inaction has occurred. The panel considered whether 8 C.F.R. § 245.1(d)(2)(ii) is “genuinely ambiguous” such that the issue of deference must be considered. Examining the language of the regulation, the panel concluded that a “technical violation” occurs only if the violation is a consequence of USCIS’s inaction on a pending application; if the violation is caused by anything within the alien’s control, such as substantive ineligibility for an extension of lawful status, there is no “technical violation.” Addressing the scenario where, as here, an alien claims that a lapse in status was caused by USCIS’s inaction on an application to extend lawful status, the panel thus concluded that a “technical violation” occurs only if the alien’s application to maintain lawful status is ultimately granted. Because the panel concluded that this is the only way the regulation can be read, it concluded that the text is not “genuinely ambiguous,” and thus, the panel concluded that it need not grant Auer deference to USCIS’s interpretation of the regulation. However, the panel noted that it would hold USCIS’s interpretation to be reasonable if it were to reach the issue of deference. 4 ATTIAS V. CRANDALL With respect to Attias, the panel concluded that his unlawful status resulted from his failure to demonstrate entitlement to an extension of his B-1 status, meaning that the lapse was not excused as having occurred “through no fault of his own or for technical reasons.” Moreover, because the lapse exceeded 180 days, the panel concluded that Attias was ineligible of adjustment of status.
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