FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT PATRICIA AUDREY PETERS, No. 16-73509 Petitioner, Agency No. v. A099-872-287 WILLIAM P. BARR, Attorney General, Respondent. 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 ...
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals