Haim Attias v. Kristine Crandall

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT HAIM ATTIAS, No. 18-56629 Plaintiff-Appellant, D.C. No. v. 2:18-cv-02334- DMG-JC KRISTINE R. CRANDALL, Acting Center Director of Nebraska Service Center, U.S. Citizenship and OPINION Immigration Services, Defendant-Appellee. Appeal from the United States District Court for the Central District of California Dolly M. Gee, District Judge, Presiding Argued and Submitted February 14, 2020 Pasadena, California Filed July 30, 2020 Before: Jay S. Bybee and Daniel P. Collins, Circuit Judges, and Barry Ted Moskowitz,* District Judge. Opinion by Judge Bybee * The Honorable Barry Ted Moskowitz, United States District Judge for the Southern District of California, sitting by designation. 2 ATTIAS V. CRANDALL SUMMARY** 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 ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. 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 ...

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