Attias v. Crandall

• Decision Date: 30 July 2020
• Docket Number: No. 18-56629,18-56629
• Citation: 968 F.3d 931
• Parties: Haim ATTIAS, Plaintiff-Appellant, v. Kristine R. CRANDALL, Acting Center Director of Nebraska Service Center, U.S. Citizenship and Immigration Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

968 F.3d 931

Haim ATTIAS, Plaintiff-Appellant,

v.Kristine R. CRANDALL, Acting Center Director of Nebraska Service Center, U.S. Citizenship and Immigration Services, Defendant-Appellee.

No. 18-56629

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 14, 2020 Pasadena, California

Filed July 30, 2020

Jonathan R. Sturman (argued) and David M. Sturman, Law Office of David M. Sturman APC, Encino, California, for Plaintiff-Appellant.

Elizabeth D. Kurlan (argued) and Daniel P. Chung, Trial Attorneys; Samuel P. Go, Senior Litigation Counsel; Glenn M. Girdharry, Assistant Director; William C. Peachey, Director; Joseph H. Hunt, Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Defendant-Appellee.

Before: Jay S. Bybee and Daniel P. Collins, Circuit Judges, and Barry Ted Moskowitz,^* District Judge.

BYBEE, Circuit Judge:

The United States Citizenship and Immigration Services (USCIS) denied Appellant Haim Attias's application for lawful-permanent-resident status. USCIS found that Attias had failed to continuously maintain lawful status prior to the filing of his application, rendering him ineligible for an adjustment in status. See 8 U.S.C. § 1255(c). Attias filed suit, claiming that his lapse in lawful status is excused because the lapse occurred "through no fault of his own or for technical reasons." Id. Thus, Attias contends that USCIS's decision should be "set aside" under the Administrative Procedure Act (APA) because it is "not in accordance with law." 5 U.S.C. § 706(2). The district court disagreed and granted summary judgment to USCIS. We affirm.

I. BACKGROUND AND PROCEEDINGS

A. Statute, Regulations, and USCIS Guidance

After being lawfully "admitted or paroled into the United States," an alien's status "may be adjusted" to lawful permanent resident if certain conditions are met. 8 U.S.C. § 1255(a). But an alien is categorically prohibited from obtaining an adjustment of status if the alien falls into one of eight categories enumerated in 8 U.S.C. § 1255(c). The relevant category for our purposes is the second one. Under that provision, an alien is barred from adjusting status if the alien "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." Id. § 1255(c)(2). In other words, an alien is ineligible for lawful-permanent-resident status if the alien's lawful status has lapsed at any point since entering the country, unless the alien demonstrates the lapse occurred "through no fault of his own or for technical reasons." Id.

The statute provides no further definition of the phrases "lawful status" or "through no fault of his own or for technical reasons." See id. But an implementing regulation does. As relevant here, the regulation defines "[l]awful immigration status" as "[a]n alien admitted to the United States in nonimmigrant status ... whose initial period of admission has not expired or whose nonimmigrant status has been extended." 8 C.F.R. § 245.1(d)(1)(ii). The regulation also interprets "[t]he parenthetical phrase other than through no fault of his or her own or for technical reasons" to mean "[a] technical violation resulting from inaction of [USCIS] (as for example, where an applicant establishes that he or she properly filed a timely request to maintain status and [USCIS] has not yet acted on that request)." Id. § 245.1(d)(2)(ii).¹ Thus, if an alien's lapse in lawful status "result[s] from inaction of" USCIS, the lapse is excused and will not render the alien ineligible for adjustment of status under § 1255(c). Id.

The final relevant statutory provision is 8 U.S.C. § 1255(k). That provision creates an exception to § 1255(c) ’s categorical bar on adjusting status even when an alien's lapse in lawful status is the alien's fault. Under § 1255(k), if an alien is eligible for certain employment-related visas, a lapse in lawful status will not preclude the alien from obtaining an adjustment of status so long as the lapse did not exceed an "aggregate period" of 180 days. Id. § 1255(k).²

Put differently, § 1255(k) creates a blanket 180-day "grace period" for particular aliens. See Peters v. Barr , 954 F.3d 1238, 1240 (9th Cir. 2020). These individuals are not prohibited from adjusting status because of a lapse in lawful status unless the lapse exceeded 180 days, at which point § 1255(c) ’s prohibition would apply.

Two documents created by USCIS explain the agency's interpretation of these statutory and regulatory provisions when adjudicating an alien's application to adjust status. The first document is a memorandum issued in 2008 by Donald Neufeld revising USCIS's Adjudicator's Field Manual, Chapter 23.5(d). Memorandum from Donald Neufeld, Acting Assoc. Dir., Domestic Operations, United States Citizenship and Immigration Services (July 14, 2008) [hereinafter Neufeld Memo]. The Neufeld Memo primarily focused on the interaction between § 1255(k) and § 1255(c). See id. at 1.

As relevant here, the Neufeld Memo explored the concept of "lawful immigration status" and the effect a pending application for an extension of or adjustment in status has on an alien's legal standing. Consistent with the regulatory definition of "lawful immigration status," the Neufeld Memo notes that "[e]xpiration, revocation, or violation of status puts a nonimmigrant out of status, and the alien remains out of status until some adjudication restores status or the alien departs the United States." Id. at 5. Thus, merely filing an application to extend lawful status does not grant the alien lawful status: "The period during which an alien has a pending [extension of stay], [change of status], or adjustment of status application does not constitute, in and of itself, a period in which the alien is in a lawful ‘status.’ " Id. at 6.³ If, however, the application is "ultimately approved," USCIS will treat the alien as if "the alien was in a lawful nonimmigrant status" during the application's pendency. Id. Additionally, the Neufeld Memo took the position that where the unlawful status resulted from a " ‘technical violation’ or through no fault of the applicant, ... such period does not count against the 180-day period" allowed by § 1255(k). Id.

The second document promulgated by USCIS is the agency's Policy Manual . In Volume Seven, Part B, Chapter Four of the Policy Manual , USCIS provides guidance for applying 8 C.F.R. § 245.1(d)(2). Recall that this regulation interprets § 1255(c) ’s exculpatory clause—"through no fault [of the alien] or for technical reasons"—to include "[a] technical violation resulting from inaction of [USCIS] (as for example, where an applicant establishes that he or she properly filed a timely request to maintain status and [USCIS] has not yet acted on that request)." 8 C.F.R. § 245.1(d)(2)(ii). According to the Policy Manual , an alien may take advantage of this regulatory provision only if, prior to the expiration of the alien's lawful status, the alien "filed an application to extend or change nonimmigrant status that was meritorious in fact, not frivolous or fraudulent, or otherwise designed to delay removal or departure from the United States." Mirroring the analysis set forth in the Neufeld Memo, the Policy Manual notes that if the application is ultimately approved, "the start date of the extended status is retroactive to the expiration date of the initial or previously extended period of status." But if the application is denied, the alien's legal status lapsed on the expiration date, and "[a] technical violation resulting from inaction of [USCIS]" has not occurred. See 8 C.F.R. § 245.1(d)(2)(ii).

To illustrate this point, the Policy Manual provides the following example. An alien's legal status will expire on June 30, 2009. Prior to that date, on June 1, the alien files an application to extend his legal status for six months. USCIS does not act on that application before June 30, so the alien's lawful status expires. On August 1, 2009, the alien then files an application to adjust status. The Policy Manual explains that if USCIS eventually grants the June 1 application to extend status, "USCIS considers the [alien] to have continuously maintained lawful status for purposes of adjusting status." In other words, the lapse in lawful status is forgiven as a "technical violation resulting from inaction of USCIS." On the other hand, "if USCIS denied the extension application, the [alien] would have fallen out of status as of June 30 and would be barred from adjusting status, unless an exemption applies." Thus, according to USCIS's Policy Manual , whether an alien who filed a timely application to extend status may take advantage of 8 C.F.R. § 245.1(d)(2)(ii) depends on USCIS's final resolution of the extension application.

B. Facts and Proceedings

With the legal framework and agency guidance in mind, we now turn to the facts of this case. Attias, a citizen of Israel, was admitted to the United States on a B-2 nonimmigrant visa in 2015. His B-2 visa was valid until November 2, 2015. In September 2015, Attias filed an application to change his B-2 visa to a B-1 visa.⁴ USCIS approved Attias's application, changing Attias's status to a B-1 nonimmigrant visa. Attias's B-1 visa was valid from February 29, 2016 to April 2, 2016.

On April 1, 2016, the day before his B-1 visa expired, Attias filed a Form I-539 Application to Extend/Change Nonimmigrant Status (Form I-539) requesting an extension of his B-1 visa until October 5, 2016. USCIS did not immediately act on this request, so Attias's B-1 visa expired the next day. Without the visa, Attias's continued presence in the United States was unlawful.

USCIS first responded to Attias's Form I-539 on July 19, 2016, when it requested that Attias submit additional evidence supporting his continued eligibility for a B-1 visa. Attias responded to the request for evidence on August 16, 2016....