United States v. 2020-04-02 | 15-70816 | LILIT HOVHANNISYAN V. WILLIAM BARR | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LILIT HOVHANNISYAN,

Petitioner,

v.

WILLIAM P. BARR, Attorney General,

Respondent.

No. 15-70816

Agency No. A075-727-271

MEMORANDUM
*

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted December 13, 2019
Pasadena, California

Before: N.R. SMITH and WATFORD, Circuit Judges, and KORMAN,
**
District
Judge.
Lilit Hovhannisyan, a native and citizen of Armenia, petitions for review of
a decision by the Board of Immigration Appeals (BIA) upholding the denial of her
application for adjustment of status. The immigration judge (IJ) held that
Hovhannisyan is statutorily ineligible for adjustment of status because she “failed

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

**
The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
FILED

APR 2 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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(other than through no fault of [her] own or for technical reasons) to maintain
continuously a lawful status since entry into the United States.” 8 U.S.C.
§ 1255(c)(2). The BIA agreed with the IJ’s conclusion.
We vacate the BIA’s decision and remand for further proceedings because
unresolved factual issues exist that may bear on whether Hovhannisyan remains
eligible for adjustment of status.
Hovhannisyan’s lawful immigration status ended on February 27, 2000,
when her B-2 visitor’s visa expired. It appears that 8 U.S.C. § 1255(k)(2) applies
here, such that Hovhannisyan remained eligible for adjustment of status as long as
she was not out of lawful status for more than 180 days at the time she filed her
application. Although Hovhannisyan admits that she was out of lawful status for
more than 180 days, she contends that this occurred “through no fault of [her]
own” within the meaning of 8 U.S.C. § 1255(c)(2). In particular, she argues that
she reasonably relied on the services of a non-attorney immigration consultant,
Arman Babajanyan, who negligently advised her to pursue an asylum application
instead of seeking adjustment of status and (in the interim) an extension of her
visitor’s visa.
The IJ and BIA rejected Hovhannisyan’s contention on the ground that her
reliance on Babajanyan’s advice is not covered by the definition of the phrase
“through no fault of [her] own” found in 8 C.F.R. § 1245.1(d)(2). In Peters v.

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Barr, ___ F.3d ___ (9th Cir. 2020) (No. 16-73509), however, we held that
§ 1245.1(d)(2) is invalid to the extent that it excludes reasonable reliance on the
assistance of counsel as one of the circumstances covered by the phrase “through
no fault of [her] own.” We reasoned there that Congress intended that phrase to
apply when an applicant for adjustment of status is not personally responsible for
her failure to maintain lawful status, and that an applicant who fails to maintain
lawful status due to her reasonable reliance on the erroneous advice of counsel is
not personally to blame for that failure. Cf. Viridiana v. Holder, 646 F.3d 1230,
1238 (9th Cir. 2011) (holding that “immigration consultant fraud is an
unenumerated circumstance—distinct from ineffective assistance of counsel—that
can excuse an untimely asylum application”).
We think the same reasoning extends to an applicant’s reasonable reliance
on the assistance of a non-attorney immigration consultant. It is a well-known fact
that many non-citizens lack the means to hire licensed attorneys and are therefore
forced to rely on the less-expensive services of non-attorney immigration
consultants, who often hold themselves out as possessing sufficient expertise to
assist applicants in navigating through the complexities of the immigration system.
Provided that an applicant’s reliance on the assistance of a non-attorney
immigration consultant is reasonable under the circumstances, the applicant’s

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failure to maintain lawful status cannot be deemed her “fault” if it occurs because
of a mistake made by the consultant.
We are unable to determine on this record whether Hovhannisyan is entitled
to relief. The record does not disclose, for example, when Hovhannisyan hired
Babajanyan. If she hired him after she had already been out of lawful status for
more than 180 days, then her reliance on his assistance could not have resulted in
her failure to maintain lawful status as required under 8 U.S.C. § 1255(c)(2) and
(k). Nor does the record disclose whether Hovhannisyan’s reliance on
Babajanyan’s assistance was reasonable under the circumstances. We therefore
vacate the BIA’s decision and remand the case for further proceedings consistent
with this disposition.
PETITION FOR REVIEW GRANTED.