Peters v. Barr

• Decision Date: 02 April 2020
• Docket Number: No. 16-73509,16-73509
• Citation: 954 F.3d 1238
• Parties: Patricia Audrey PETERS, Petitioner, v. William P. BARR, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

954 F.3d 1238

Patricia Audrey PETERS, Petitioner,

v.William P. BARR, Attorney General, Respondent.

No. 16-73509

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 13, 2019 Pasadena, California

Filed April 2, 2020

Jason A. Orr (argued), O’Melveny & Myers LLP, Los Angeles, California, for Petitioner.

Remi da Rocha-Afodu (argued), Trial Attorney; Mary Jane Candaux, Assistant Director; Office of Immigration Litigation, United States Department of Justice, Washington, D.C.; for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals Agency No. AXXX-XX2-287

Before: N. Randy Smith and Paul J. Watford, Circuit Judges, and Edward R. Korman,^* District Judge.

WATFORD, Circuit Judge:

For nearly 14 years, Patricia Audrey Peters has been stuck in what can only be described as a bureaucratic nightmare. In 2006, her lawyer failed to file the paperwork necessary to obtain an extension of her lawful immigration status. At each stage of the lengthy proceedings below, immigration authorities have ruled that, as a result of her lawyer’s mistake, Peters lost her eligibility to become a lawful permanent resident of the United States. We are asked to decide whether the regulation supporting that ruling is consistent with the Immigration and Nationality Act.

I

Peters is a citizen of the United Kingdom who lawfully entered the United States in 2001 on a non-immigrant B-1 visa. Later that year, at her request, United States Citizenship and Immigration Services (USCIS) changed her status to that of an H-1B temporary employee, a non-immigrant classification reserved for skilled workers performing services in a specialty occupation. See 8 U.S.C. § 1101(a)(15)(H)(i)(b) ; 8 C.F.R. § 214.2(h)(1)(ii)(B). Peters was initially authorized to work and remain in the United States until November 1, 2004. In December 2003, her employer, Impact Capital Advisors LLC, petitioned to extend her H-1B status until July 15, 2006. USCIS approved the request.

In June 2006, about a month before Peters’s H-1B status was set to expire, Impact Capital filed another request to extend her status. David Richmond was the attorney engaged to file the necessary paperwork, known as an I-129 petition. USCIS received the I-129 petition on June 22, 2006. Although all the substantive paperwork was in order, Richmond failed to include two supplemental forms whose submission the agency had recently mandated. Based on this minor paperwork error, USCIS rejected the petition and returned it to Richmond.

USCIS’s decision to return the I-129 petition set in motion a series of events that has haunted Peters ever since. The agency decided to return the petition on June 29, 2006, but it did not notify Peters of its decision until September 21, 2006. By then, her H-1B status had expired, and she was no longer lawfully present in the United States. Richmond was responsible for resubmitting the I-129 petition, this time with the required supplemental forms attached. He assured Peters at the time (in late September or early October 2006) that he had done so, and the record discloses no reason for Peters to have doubted the truth of what he told her. Indeed, Richmond later submitted a declaration stating under oath that he promptly refiled a corrected I-129 petition after he learned of the initial petition’s rejection.

USCIS claims that it never received the corrected I-129 petition. Thus, the agency never granted Peters an extension of her H-1B status.

When Richmond did not receive confirmation from USCIS that it had received the corrected I-129 petition, he made repeated inquiries of the agency to check on the petition’s status. His efforts to find out why the petition had not been processed proved fruitless. Concerned that she was now without lawful status in the United States, Peters wrote to her local members of Congress to see if they could help determine why USCIS had not acted upon her I-129 petition. The president of Impact Capital did the same. None of those efforts bore fruit either.

To avoid similar problems with having to extend her status in the future, Peters decided during this same period to apply for adjustment of status, from that of an H-1B non-immigrant employee to that of a lawful permanent resident. The first step in that process involved Impact Capital’s filing an I-140 petition on Peters’s behalf, which it did on October 3, 2006. USCIS approved the I-140 petition on June 7, 2007. Richmond thereafter filed Peters’s application for adjustment of status on June 26, 2007.

USCIS denied the application. As explained in more detail below, to establish eligibility for adjustment of status, Peters was required to show that she had not been out of lawful immigration status for more than 180 days at the time she filed her application. Peters could not make that showing, the agency concluded, because she fell out of lawful status after July 15, 2006 (when her H-1B status expired), and she did not apply for adjustment of status until almost a year later.

Peters challenged USCIS’s denial of her application for adjustment of status by filing an action in federal district court. That action was ultimately dismissed as moot when the Department of Homeland Security commenced removal proceedings against Peters in April 2010. Peters v. Napolitano , 565 F. App'x 589 (9th Cir. 2014). After removal proceedings commenced, the immigration judge (IJ) presiding over the proceedings acquired exclusive jurisdiction to decide whether Peters should be granted status as a lawful permanent resident. See id.

Peters accordingly reapplied for adjustment of status in her removal proceedings. The IJ denied her application for the same reason USCIS had given. A more detailed explanation of the statutory framework governing that determination follows.

The Immigration and Nationality Act declares certain categories of non-citizens ineligible to become lawful permanent residents, including anyone who has failed to maintain lawful immigration status continuously since entering the United States. The key provision at issue in this case provides that the following individuals are barred from becoming lawful permanent residents: "subject to subsection (k), an alien ... who is in unlawful immigration status on the date of filing the application for adjustment of status or who 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." 8 U.S.C. § 1255(c)(2). Subsection (k) of § 1255 provides, as relevant here, that skilled workers such as Peters receive something of a grace period: They remain eligible for adjustment of status as long as they have not been out of lawful status for more than 180 days at the time their application is filed. § 1255(k)(2) ; see Ma v. Sessions , 907 F.3d 1191, 1197 (9th Cir. 2018).

In this case, the IJ agreed with USCIS that Peters had been out of lawful immigration status for more than 180 days by the time she filed her application for adjustment of status. The IJ concluded that USCIS properly rejected the initial I-129 petition that Richmond filed in June 2006 because it did not include the required supplemental forms. And the IJ found that Richmond never refiled the corrected I-129 petition as he claimed he had. The IJ relied on the fact that Richmond had no documentary proof of having mailed the corrected petition—not even a copy of the petition itself. (Richmond explained that he did not make a copy of the petition before mailing it because he mistakenly thought his secretary had done so.) Nor did Richmond have a receipt of any sort establishing when and where he had mailed the corrected I-129 petition. Since Peters did not dispute that her H-1B status had expired on July 15, 2006, and that she did not receive an extension thereafter, the IJ held that she had been out of lawful status for more than 180 days by the time she applied for adjustment of status in June 2007. That fact rendered her statutorily ineligible for relief.

Peters countered this analysis by invoking the parenthetical exception in 8 U.S.C. § 1255(c)(2), which provides that an applicant’s failure to maintain lawful immigration status will not bar eligibility if the failure occurred "through no fault of his own or for technical reasons." Peters argued that she fell out of lawful status for more than 180 days through no fault of her own because one of two things occurred: either Richmond timely filed the corrected I-129 petition (as he said he did) and USCIS misplaced it; or, alternatively, Richmond did not file the petition despite assuring Peters that he had done so. Either way, Peters argued, her failure to maintain lawful immigration status occurred through no fault of her own.

The IJ rejected Peters’s argument. The IJ relied not on the plain meaning of the statutory phrase "other than through no fault of his own or for technical reasons," but on the definition of that phrase provided in a regulation promulgated by USCIS’s predecessor agency. The regulation states that the terms "through no fault of his own" and "for technical reasons" encompass just four limited sets of circumstances, two of which are potentially relevant here:

(d) Definitions—

* * *

(2) No fault of the applicant or for technical reasons . The parenthetical phrase other than through no fault of his or her own or for technical reasons shall be limited to:

(i) Inaction of another individual or organization designated by regulation to act on behalf of an individual and over whose actions the individual has no control, if the inaction is acknowledged by that individual or organization (as, for example, where a designated school official certified under § 214.2(f) of 8 CFR chapter I or an exchange program sponsor under § 214.2(j) of 8 CFR chapter I did not provide required notification to the Service of continuation of status, or did not forward a request for continuation of status to the Service); or

(ii) A technical

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