HAIM ATTIAS v. KRISTINE R. CRANDALL, Acting Center Director of Nebraska Service Center, U.S. Citizenship and Immigration Services
No. 18-56629
United States Court of Appeals for the Ninth Circuit
July 30, 2020
D.C. No. 2:18-cv-02334-DMG-JC
Jay S. Bybee, Daniel P. Collins, and Barry Ted Moskowitz
FOR PUBLICATION. OPINION. Argued and Submitted February 14, 2020, Pasadena, California.
Before: Jay S. Bybee and Daniel P. Collins, Circuit Judges, and Barry Ted Moskowitz,* District Judge.
Opinion by Judge Bybee
SUMMARY**
Immigration
Affirming the district court’s grant of summary judgment
Under
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 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
The panel considered whether
Because the panel concluded thаt 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.
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.
COUNSEL
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.
OPINION
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
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.
The statute provides no further definition of the phrases “lawful status” or “through no fault of his own or for technical reasons.” See
The final relevant statutory provision is
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 Citizenshiр and Immigration Services (July 14, 2008) [hereinafter Neufeld Memo]. The Neufeld Memo primarily focused on the interaction between
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
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
To illustrate this point, the Policy Manual prоvides 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 purpоses 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
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 Nonimmigrаnt 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. Nearly a year later, on July 25, 2017, USCIS denied Attias’s application to extend his B-1 visa, explaining that Attias had failed to demоnstrate that his presence in the United States would be temporary, making him ineligible for the visa.
Attias did not challenge that decision. Instead, even before his request to extend his B-1 visa was denied, Attias began attempting to obtain legal status through other means. On January 26, 2017, his employer filed a Form I-140 Immigrant Petition for Alien Worker, which was granted on November 29, 2017. In conjunction with that filing, Attias filed a Form I-485 Application for Adjustment of Status (Form I-485), requesting he be given lawful-permanent-resident status.
USCIS denied the Form I-485 on February 9, 2018. Relying on
Attias timely sought reconsideration of USCIS’s decision. He claimed that his lapse in lawful status was excused under
USCIS denied the motion to reconsider. Citing the Neufeld Memo, USCIS explained that an individual falls “out of status” upon “[e]xpiration, revocation, or violation of status,” and the pendеncy of an “application does not constitute, in and of itself, a period in which the alien is in a lawful ‘status.’” When Attias’s B-2 visa expired on April 2, 2016, Attias was no longer in lawful status. Even though USCIS’s inaction on Attias’s Form I-539 “appears to have exceeded normal processing times,” USCIS ultimately denied the Form I-539. And because the Form I-539 was denied, “the period during which [that] application was pending does not constitute a lawful status.” Thus, Attias “failed to maintain a valid nonimmigrant status” for 298 days, rendering him ineligible for an adjustment of status to lawful-permanent-resident.
Following USCIS’s denial of his motion to reconsider, Attias initiated this lawsuit. He requested that USCIS’s judgment be set aside under the APA. Attias contended that USCIS had misread the statute and regulation, arguing that USCIS’s delay in adjudicating his Form I-539 caused a “technical violation” under
The district court rejected Attias’s argument and granted summary judgment to USCIS. In its summary-judgment order, the district court sua sponte took judicial notice of USCIS’s Policy Manual. The court found that the Policy Manual’s interpretation of
Following entry of the summary-judgment order, Attias filed a motion for reconsideration. The district court denied the motion, and this appeal followed.6
Under the APA, a “reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be . . . not in aсcordance with law.”
USCIS takes a different view. It contends that its interpretation of
When faced with an agency’s interpretation of its own regulation, we must first determine whether the regulation is “genuinely ambiguous.” Kisor v. Wilkie, 139 S. Ct. 2400, 2414 (2019). To determine if a regulation’s text is genuinely ambiguous, we must “resort[] to all the standard tools of interpretation,” including analysis of the regulation’s “text, structure, history, and purpose.” Id. at 2414–15. If the regulation’s text is unambiguous, we give no deference to the agency’s interpretation: “[t]he regulation then just means what it means.” Kisor, 139 S. Ct. at 2415. But if the regulation is ambiguous, we will defer to the agency’s interpretation so long as that interpretation is “reasonable,” is based on the agency’s “substantive expertise,” “reflect[s] [the agency’s] fair and considered judgment,” and represents “the agency’s authoritative or official position.” Id. at 2415–17 (internal quotation marks omitted).
As we previously noted, the regulatory provision primarily at issue here is
This reading of the phrase “resulting from” informs our interpretation of the
Simple hypotheticals will demonstrate the point. Suppose that an alien files a timely, meritoriоus application to extend status. If USCIS acts with instantaneous dispatch, the application will be granted and there will be no lapse in the alien’s status. If, however, USCIS does not act with such dispatch, the alien will be temporarily out of status until the application is granted. USCIS considers that gap in status to be “[a] technical violation resulting from inaction of [USCIS].”
Attias raises two objections to this reading. First, Attias argues that
Second, Attias claims that this reading renders
We disagree. When an alien’s lapse in lawful status occurs “through no fault of his own or for technical reasons,” the lapse is excused and USCIS will treat the alien as though he had continuously mаintained lawful status.
Because we believe this is the only way the regulation can be read, we conclude that the text is not “genuinely ambiguous.” We thus need not grant Auer deference to USCIS’s interpretation of the regulation. See Kisor, 139 S. Ct. at 2414.7 And given our reading of the regulation, this case is easily resolved. Attias’s lapse in lawful status was not caused by USCIS’s inaction. To the contrary, Attias’s lapse resulted from his substantive ineligibility for an extension of his B-1 visa. By ultimately denying Attias’s Form I-539, USCIS found that Attias failed to demonstrate his entitlеment to an extension of B-1 status. That failure, not USCIS’s attendant delay in adjudicating the Form I-539, resulted in Attias being in unlawful status. Accordingly, Attias’s lapse in lawful status did not occur “through no fault of his own or for technical reasons,” so the lapse is unexcused.
III. CONCLUSION
We conclude Attias “failed . . . to maintain continuously a lawful status since entry into the United States.”
AFFIRMED.