United States v. 2020-04-02 | 16-73509 | PATRICIA PETERS V. WILLIAM BARR | precedential | opinion |

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

PATRICIA AUDREY PETERS,
Petitioner,

v.

WILLIAM P. BARR, Attorney General,
Respondent.
No. 16-73509

Agency No.
A099-872-287

OPINION

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

Argued and Submitted December 13, 2019
Pasadena, California

Filed April 2, 2020

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

Opinion by Judge Watford

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

2 PETERS V. BARR

SUMMARY
**

Immigration

The panel granted Patricia Audrey Peters’s petition for
review of a Board of Immigration Appeals’ decision,
holding that Peters remains eligible for adjustment of status
because she reasonably relied on her attorney’s assurances
that he had filed the petition necessary to maintain her lawful
status, and therefore, her failure to maintain lawful status
was through no fault of her own.

An individual is barred from adjusting status to become
a lawful permanent resident if he or she “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). However, skilled
workers such as Peters remain eligible for adjustment of
status as long as they have not been out of lawful status for
more than 180 days. Peters argued that she fell out of lawful
status through no fault of her own because either: 1) her
attorney timely filed the necessary petition (as he said he did)
and it was misplaced; or 2) the attorney did not file the
petition. The immigration judge and BIA rejected that
argument, concluding that the statutory phrase “other than
through no fault of his own or for technical reasons” was
limited by regulation, 8 C.F.R. § 1245.1(d)(2), to four
limited circumstances, none of which applied to Peters.

**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

PETERS V. BARR 3

Observing that substantial evidence supported the IJ’s
finding that the attorney never filed the required petition, the
panel concluded that the attorney’s failure resulted in
Peters’s falling out of lawful status, and that her failure to
maintain lawful status occurred through no fault of her own.
The panel explained that an applicant cannot be regarded as
personally responsible for failing to maintain lawful status
when that failure occurs due to a mistake on her lawyer’s
part. Applying Chevron U.S.A. Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984), the panel held
that 8 C.F.R. § 1245.1(d)(2) is invalid to the extent it
excludes reasonable reliance on the assistance of counsel
from the circumstances covered by the statutory phrase
“other than through no fault of his own.”

COUNSEL

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.

4 PETERS V. BARR

OPINION
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,

PETERS V. BARR 5

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.

6 PETERS V. BARR

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.

PETERS V. BARR 7

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

8 PETERS V. BARR

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:

PETERS V. BARR 9

(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 violation resulting from
inaction of the Service (as for example, where
an applicant establishes that he or she
properly filed a timely request to maintain
status and the Service has not yet acted on
that request). An individual whose refugee or
asylum status has expired through passage of
time, but whose status has not been revoked,
will be considered to have gone out of status
for a technical reason.
8 C.F.R. § 1245.1(d)(2)(i)–(ii).
The IJ held that Peters failed to show that her case is
covered by either of the definitional provisions just quoted.
Peters did not fall out of lawful status due to a “technical
violation resulting from inaction of the Service,” because the
IJ had found as a factual matter that Richmond never filed a
corrected I-129 petition. Therefore, this was not a case in
which an applicant “properly filed a timely request to
maintain status and the Service has not yet acted on that
request.” § 1245.1(d)(2)(ii). Nor could Peters establish that

10 PETERS V. BARR

her case is covered by the first definitional provision, both
because Richmond was not an individual “designated by
regulation to act” on her behalf, and because he had not
“acknowledged” his failure to file the corrected I-129
petition. § 1245.1(d)(2)(i). Instead, he maintained until his
death during the pendency of these proceedings that he had
in fact filed the corrected petition.
Based on the narrow construction of the statute provided
in 8 C.F.R. § 1245.1(d)(2), the IJ held that Peters could not
show that her failure to maintain lawful status occurred
“through no fault of [her] own or for technical reasons.” The
IJ refused to address Peters’s challenge to the validity of the
regulation on the ground that immigration judges lack
jurisdiction to resolve such challenges. See Espinoza-
Gutierrez v. Smith, 94 F.3d 1270, 1273 (9th Cir. 1996).
The Board of Immigration Appeals (BIA) affirmed the
IJ’s ruling for essentially the same reasons discussed above.
Peters has timely petitioned for review of the BIA’s decision.
II
We have little difficulty concluding that the BIA’s
decision must be reversed, but one observation at the outset
will help clarify the narrow basis of our holding.
Substantial evidence supports the IJ’s finding that
Richmond never filed a corrected I-129 petition. To be sure,
there is evidence supporting the opposite conclusion,
particularly Richmond’s sworn statement that he refiled the
petition promptly after learning of the initial petition’s
rejection. But given Richmond’s failure to produce any
documentary proof that he mailed the petition to USCIS, a
reasonable factfinder could choose not to credit his bare

PETERS V. BARR 11

assertion that he refiled the document with the required
supplemental forms attached.
The questions before us, then, are twofold: Did
Richmond’s failure to file the corrected I-129 petition result
in Peters’s falling out of lawful immigration status for more
than 180 days? If so, did that occur “through no fault of [her]
own” within the meaning of 8 U.S.C. § 1255(c)(2)? We
think the answer to both questions is plainly yes.
The first question does not require extended discussion.
No one disputes that Peters could have obtained an extension
of her H-1B status beyond July 15, 2006, had she properly
requested it. The failure to properly request the extension is
therefore the event that led to her falling out of lawful status.
We do not think any inquiry is required into the likelihood
that USCIS would have granted the extension had it been
properly requested. But even if such an inquiry were
required, the government has provided no basis for believing
that the request would have been denied.
The second question requires a somewhat lengthier
analysis. When used in reference to people, the word “fault”
means responsibility or blame. 5 Oxford English Dictionary
768 (2d ed. 1989) (“the blame or responsibility of causing or
permitting some untoward occurrence”); Webster’s Third
New International Dictionary 829 (1986) (“responsibility for
wrongdoing or failure”). That is the sense in which “fault”
is used in the statutory phrase “other than through no fault of
his own.” And the pairing of “fault” with the phrase “of his
own” makes evident that Congress intended the
parenthetical exception to apply when an applicant is not
personally to blame for her failure to maintain lawful status.
That policy choice strikes us as eminently sensible given the
complexity of the laws governing maintenance of lawful
immigration status and the ease with which an individual

12 PETERS V. BARR

who is diligently trying to maintain such status can
inadvertently fail to do so.
Precisely because the laws governing immigration status
are beyond the ken of most lay people, virtually all
applicants for adjustment of status will rely to some degree
on the assistance of an attorney to ensure that they “maintain
continuously a lawful status.” 8 U.S.C. § 1255(c)(2). An
applicant cannot be regarded as personally responsible for
failing to maintain lawful status when that failure occurs due
to a mistake on her lawyer’s part. An applicant who relies
on the assistance of counsel to maintain lawful status will
usually have no basis to question the soundness of the advice
she receives from her lawyer. See Pleitez-Lopez v. Barr,
935 F.3d 716, 720 (9th Cir. 2019); Monjaraz-Munoz v. INS,
327 F.3d 892, 897 (9th Cir. 2003). If the advice turns out to
be erroneous and results in the applicant’s failure to maintain
lawful status, no one using the term “fault” in its ordinary
sense would say that the applicant herself was to blame. If
blame were assigned it would be placed on the attorney,
whose job it is to know the intricacies of immigration law.
What little authority we have construing § 1255(c)(2)
supports this reading of the statute. Several district courts
have grappled with the meaning of the phrase “other than
through no fault of his own or for technical reasons.” Each
has concluded—correctly in our view—that the phrase
encompasses circumstances in which an applicant’s failure
to maintain lawful status results from her reasonable reliance
on the erroneous advice of counsel. See Evangelista v.
Johnson, 2015 WL 12683978, at *4–5 (D. Mass. Oct. 30,
2015); Wong v. Napolitano, 2010 WL 916274, at *12–15 (D.
Or. Mar. 10, 2010); Alimoradi v. U.S. Citizenship &
Immigration Services, 2009 WL 8633619, at *5–6 (C.D. Cal.
Feb. 10, 2009). As the court stated in Wong: “Given that

PETERS V. BARR 13

immigration law is nearly impenetrable for a lay person and
at times is uncertain, a reasonable and good faith reliance on
the advice of counsel is a permissible basis for concluding
that an alien was not at fault.” 2010 WL 916274, at *14.
Although we do not have Ninth Circuit precedent
directly on point, case law interpreting an analogous
provision of the Immigration and Nationality Act is
instructive. A provision of the Act governing in absentia
removal orders states that non-citizens who fail to appear at
a scheduled hearing and are ordered removed in absentia can
seek to reopen their proceedings if “the failure to appear was
because of exceptional circumstances.” 8 U.S.C.
§ 1229a(b)(5)(C)(i). The statute defines the term
“exceptional circumstances” to mean “exceptional
circumstances (such as battery or extreme cruelty to the alien
or any child or parent of the alien, serious illness of the alien,
or serious illness or death of the spouse, child, or parent of
the alien, but not including less compelling circumstances)
beyond the control of the alien.” § 1229a(e)(1) (emphasis
added).
We have held that failing to appear at a hearing due to
reasonable reliance on the erroneous advice of counsel
constitutes an exceptional circumstance “beyond the control
of the alien.” In Monjaraz-Munoz v. INS, 327 F.3d 892 (9th
Cir. 2003), the petitioner failed to appear at his hearing
because he had been advised by his attorney to travel to
Mexico the day before the hearing in order to validate his
visa, only to be detained at the border and denied
readmission into the United States. Id. at 894–97. We
concluded that “if Monjaraz did in fact fail to appear at his
hearing because he relied on the negligent advice of his
attorney’s agent that he travel to Tijuana the day before his

14 PETERS V. BARR

hearing, this would constitute an exceptional circumstance
beyond Monjaraz’s control.” Id. at 897.
Our decision in Monjaraz-Munoz addresses a different
section of the Immigration and Nationality Act, but it is
nonetheless instructive because the purpose served by the
“exceptional circumstances” provision is similar to the
purpose underlying the “other than through no fault of his
own” provision. Both reflect Congress’s desire to avoid
penalizing non-citizens who have diligently attempted to
follow the rules but fail in that effort due to circumstances
for which they cannot fairly be deemed responsible. In both
contexts, when reasonable reliance on an attorney’s
erroneous advice results in an applicant’s failure to take
action that the law requires, non-compliance is excused
because the applicant is not to blame.
That brings us to the regulation, 8 C.F.R. § 1245.1(d)(2),
upon which both the IJ and the BIA relied in issuing their
decisions. Peters contends that the regulation is an
impermissibly narrow interpretation of the statute. Applying
the two-step framework established in Chevron U.S.A. Inc.
v. Natural Resources Defense Council, Inc., 467 U.S. 837
(1984), we agree that the regulation is invalid to the extent it
excludes reasonable reliance on the assistance of counsel
from the circumstances covered by the statutory phrase
“other than through no fault of his own.” 8 U.S.C.
§ 1255(c)(2). As explained above, we do not think that
phrase can be read as suggesting that Congress intended to
hold non-citizens responsible for mistakes made by their
lawyers. The key consideration is whether the non-citizen’s
reliance on her lawyer’s assistance was reasonable under the
circumstances—not whether the lawyer was “designated by
regulation to act on [her] behalf,” or whether the lawyer is
someone “over whose actions the [non-citizen] has no

PETERS V. BARR 15

control,” or whether the lawyer has “acknowledged” his
inaction. 8 C.F.R. § 1245.1(d)(2)(i). Each of those
limitations is inconsistent with the statute when applied in
the context at issue here. When a non-citizen’s failure to
maintain lawful status results from her reasonable reliance
on the assistance of counsel, nothing more is needed to show
that the failure has occurred “through no fault of [her] own.”
We find it unnecessary to decide whether the regulation
is invalid to the extent just stated at step one of the Chevron
analysis or instead at step two. The answer to that question
depends solely on how broadly or narrowly one frames the
interpretive question posed by this case. If the question is
framed narrowly—whether reasonable reliance on the
assistance of counsel constitutes a circumstance covered by
the statutory phrase “other than through no fault of his
own”—the regulation is invalid at step one because it
conflicts with “the unambiguously expressed intent of
Congress.” Chevron, 467 U.S. at 842–43. If the question is
framed more broadly—whether the phrase “other than
through no fault of his own” is itself ambiguous—the
regulation is invalid at step two because the agency’s attempt
to define that phrase to exclude reasonable reliance on the
assistance of counsel is an impermissibly narrow
construction of the statute. See id. at 843.
Resolution of this appeal does not require us to declare
the regulation invalid in its entirety. It is enough to hold, as
we do today, that 8 C.F.R. § 1245.1(d)(2)(i) is invalid to the
extent it excludes reasonable reliance on the assistance of
counsel from the circumstances covered by the phrase “other
than through no fault of his own.”
The IJ erred by denying Peters’s application for
adjustment of status on the ground that she is ineligible for
such relief under 8 U.S.C. § 1255(c)(2). Peters reasonably

16 PETERS V. BARR

relied on Richmond’s assurances that he had filed the
corrected I-129 petition necessary to maintain her lawful
immigration status. She remains eligible for adjustment of
status because her failure to maintain lawful status
continuously since entering the United States occurred
through no fault of her own. We grant Peters’s petition for
review and remand the case to the BIA so that it may address
in the first instance the alternative ground on which the IJ
denied Peters’s application.
PETITION FOR REVIEW GRANTED.