968 F.3d 931
9th Cir.2020Background
- Attias, an Israeli national, entered the U.S. on a B-2 visa in 2015, later changed to B-1; his B-1 expired April 2, 2016.
- On April 1, 2016 Attias timely filed Form I-539 to extend/change his B-1 status; USCIS did not adjudicate before the B-1 expiration.
- USCIS issued an RFE July 19, 2016; Attias responded August 16, 2016; USCIS denied the I-539 on July 25, 2017 for failure to show temporary intent.
- Employer filed an I-140 for Attias on January 26, 2017 (later approved); Attias filed Form I-485 to adjust status but USCIS denied it February 9, 2018.
- USCIS determined Attias was out of status from April 3, 2016 to January 25, 2017 (298 days), exceeding the 180-day aggregate allowed under 8 U.S.C. §1255(k).
- District court granted summary judgment for USCIS; Ninth Circuit affirmed, holding Attias’s lapse was not a "technical violation resulting from inaction of USCIS."
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 8 C.F.R. §245.1(d)(2)(ii) excuses a lapse in status when an alien files a timely I-539 and USCIS delays adjudication | Attias: timely filing + USCIS inaction = "technical violation" excusing lapse | USCIS: "resulting from inaction" requires the lapse be caused by agency delay (i.e., not by applicant's ineligibility); denial shows lapse was applicant-caused | Court: "resulting from" read causally; regulation not genuinely ambiguous; lapse not excused because I-539 was ultimately denied |
| Whether §1255(k) 180-day exception applies | Attias: lapse should be excused under regulation so §1255(k) not implicated | USCIS: lapse unexcused and exceeded 180 days, so §1255(k) inapplicable | Court: lapse unexcused and exceeded 180 days; §1255(k) does not rescue Attias; adjustment barred |
Key Cases Cited
- Kisor v. Wilkie, 139 S. Ct. 2400 (2019) (standards for deference to an agency's interpretation of its own regulation)
- Xiao Lu Ma v. Sessions, 907 F.3d 1191 (9th Cir. 2018) (agency may reject relief when lapse results from applicant's own ineligibility)
- Peters v. Barr, 954 F.3d 1238 (9th Cir. 2020) (discussion of §1255(k) 180‑day allowance)
- Marx v. General Revenue Corp., 568 U.S. 371 (2013) (avoidance of surplusage in statutory interpretation)
- Hernandez v. Ashcroft, 345 F.3d 824 (9th Cir. 2003) (ameliorative canon does not override ordinary meaning)