this case is about how harsh and how unforgiving the immigration system of this country is meant to be and no point in this year's long litigation has the government been able to articulate what more the petitioner should have done to maintain her lawful status instead it is committed to deporting a talented honest and hardworking individual based on little more than to put her work in state there are three independent reasons that this  holding here st is that the holding is unsupported by substantial evidence the nd is that the the u s c i s regulation at issue here is an on reasonable interpretation of the statutory text and rd equitable tolling applies here to enlarge the one hundred and eighty day grace period that is created for specialty workers like miss peters i do not intend to reach the issue of whether there was evidence below that miss peters employer could pay the pro one of the chevron difference in your brief are you conceding that to praise no fault of your own is ambiguous no no your honor i didn't sure chevron step on  i believe the brits did address chevron stop well i mean i already said tonight couldn't find it so that's why i asked you the question seemed to me based on your brief that i was already at the point where the statute was ambiguous and therefore i had to determine what to do they're after in step two i apologize if the brief was unclear but it did stated that that language means exactly what it says it is  definition i would contend that both both components of that phrase are unambiguous it may be the case that the language is broad enough to encompass a wide variety of circumstances that are not defined that no faults it's crystal clear so if no fault of your own is not ambiguous then the regulations themselves are not needed is that what you're arguing  i would argue that the the narrow circumstances defined by those regulations do not learn some really reason for the regulations if it's a non ambiguous statute is there i would contend that there is  no reason for the l then are you arguing that i can determine what the statute says not alone because a good colleague here but that we can determine what the statute says yes we believe  therefore we could determine no fault of your own includes then where we have ineffective assistance  counsel i agree with your honor that you cannot i know i know and i'm not really asking the agreement i'm trying to get what your argument is if this statute is unambiguous and it's clear then it seems to me then that they agency had no authority to try to interpret it had no authority to try to issue regulation and therefore i am left as judge gorsuch would suggest to make the definition of the statute and therefore if i can make the definition of the statute i can just as easily suggest that statute has unit exceptions one of those exceptions is not ineffective assistance of counsel and therefore it isn't an exemption or i can say it is an exception nonetheless because it's clear no fault of your own it's correct that it is on this court to interpret the meaning of that statutory text i just pause when you say ineffective assistance of counsel because  although that phrase has been used at several points below that as your honor is aware and effective a distance of counsel is a constitutional doctrine stemming from a due process right to counsel and we've we've never contended that miss peters had a due process right to have her petition sent in by counsel the issue of ineffective assistance of counsel as a term of art is beside the point i mean here the question is whether petitioner was honor miss peters reasonable reliance on her immigration attorney made any lapse in lawful status not her fault under the meaning of the statute so let's say that the statute is ambiguous the chevron is is this a reasonable interpretation of the statute now that the regulations themselves don't really interpret the text so much as they narrow a broad exception that was defined by congress into a very narrow exception by limiting it to for specific and highly technical circumstances we believe that this is an unreasonable and arbitrary interpretation of the statute why is  group unreasonable seems to me that if we get too ambiguous and we're releasing what to me what it is that we're gap feeling or what it means that why would we say the agencies limitations that they have suggested are not the reasonable ones disappointed what would give us an idea of the text itself the text itself is far broader than that congress did not want people like miss peters to be kicked out of the country based on some small error and her paperwork but the very technical regulations that the government has contended command that results we believe that even under the narrow meaning of those regulations there is still one exception a technical violation resulting from an action of the service that is supported in the record and that this peter is supported and proved beyond substantial evidence for their finding but i want to be clear about where deference could be owed and where it shouldn't be owed on this decision chevron deference may apply although we believe that it does not to the u s c i s is interpretation of the no fault or technical reasons exception that is a place where chevron is applicable even though under the standards of chevron deference is not owed to the agencies under reasonable interpretation where chevron if it is owed skidmore deference under which the deference that this court gives to the i a e a is commensurate with the reasonableness of its decision and the special expertise that went into making that decision so under skidmore a rubber stamp is not owed any deference and here the b idea simply agreed with the immigration courts findings without making any other additional analysis and did not rely on any kind of special expertise on that this application was never sent the application for the renewal three a renewal of the i twenty nine that it was never sent if it had been sent and not responded to you would have benefited from the agency's definition of technical so are we really dealing with the now or are we dealing with the question of fact and a finding  fact or really dealing with the construction of the reg because in the nd that i believe the nd exception that they formulated would cover if if in fact it had been the old and haven't agency in fact did not receive it to be is a little technical but the immigration court found that petitioner had not met her burden to show to prove that the u s c i s received of the petition and did not act on it  either way i believe that subject to substantial evidence review and so the question is whether under leave vs ins whether the finding is supported by reasonable substantial or probative evidence and here the only evidence that us c i s did not receive the petition is the mere absence of some kind of record in their files showing that it was received but the record also has evidence that severely undercut that  fact because especially at the time that petitioner sent in her i want twenty nine petition this agency was beleaguered by mismanagement it routinely lost files misdirected files would  not send out receipt notices for petitions received would not adjudicated petitions after having received them and so under other circumstances maybe that the absence of a record in the agency's files would  it seems to me you make a good cure your government for the other side of it but there are substantial over tims was staying with they did find we believe that that that's low in fact that there was not  a record in the agency's file it does not constitute reasonable substantial or probative evidence that's what your argument is yes you do you know whether the common law mailbox rule applies in this context that rule gives rise to a presumption of receipt in the ordinary course if you show that you in fact did mail something you know the rule applies in this context well here under the facts miss peters immigration attorney who was representing her at the time did not  secure a delivery receipt or any kind of confirmation that it was sent out there is because  that was actually it's possible it does apply if they don't know you don't have thirty that says it so i was i said you haven't been able to find any the rule definitely applies even if you just put it in regular mail you don't have to it's not you know to send by certified or registered can i ask you just a basic factual question yes just give me the chronology of when these different events occurred she mails or the attorney mails the st i want twenty nine in june correct to not on whatever date it's in within a few days it's denied year so it's not clear if in fact the evidence shows that it was that the notice was received much later ok with that that's what i'm trying to get straight so but in terms of when we have a date six hundred and twenty six i think again when the agency at least says but you're saying that neither your client nor her attorney found out about the rejection until later in september some months later that's what the evidence shows but we don't know when exactly will the attorney suggest that they received it in september yet and that he said barack or mailed is appropriate information after receiving the rejection in september correct that's  correct that the record is a little unclear on this point because because there is no documentary proof of the exact date that the nd i want twenty nine petition was mailed mr richmond petitioner testified under penalty of perjury and maintained to his death that he did send in the nd i want twenty nine petition so the exact date of it is made clear in the record but the fact of it being sent in is supported in the record ok and then just eleven last question the checks that were sent to november do we have an explanation for why they were sent in the time frame i don't have an explanation for that  of status because she feels to maintain continuous lawful status for more than one hundred and eighty dollars days study show evidence in the record supports the board's determination that there is that she reasonably believed that he did that and in fact the warrior richmond was actually retained by the her employer not by her and whether she reasonably believed it how was it assuming that he didn't send it how was that her fault ok or not even if the consul which is in fact capitals attorney did not send the unit i want that it is still it doesn't comply with the that that in itself does not mean that at titian are complied  curiosity and it seems to me that it's not a not an ambiguous term and means in substance as a result of something that she did wrong and it seems to me that she was not at fault here even if there was no mailing because essentially this was delegated to him by her employer to the lawyer and she believed that he had actually done what he was supposed to do so why is this her f regulations and i'd like to go through these i know but we don't get to the regs if the statute it's the the agencies that definition of for a less we determine that the word is brief that you do not address chevron step one which is the statute is clear and unambiguous and my worry about is why is the fault why is the phrase no fault of your own ambiguous if you don't address that in your brave and they you put some regulations together suggesting that it was just saying because congress hasn't said anything that they have validated it is that what you're suggesting all the necessarily on this particular regulation went through the process of law making it's been on the rules for thirty years there was an interim rule and then three years later there was a final rule and since then congress has amended to the i n e including the specific regulations and the statutes dealing with adjustment of status and congress has never deemed it fit to change that regulatory meaning but even if congress validated this regulation as you suggest what if i suggest that the interpretation was not reasonable isn't it isn't that the nd prong of the evaluation about whether this regulation will succeed that it all can be very must be validated plus it must be a reasonable interpretation i and if i suggest it's a non reasonable interpretation even if you're going to argue congress validated anyway then it doesn't survive scrutiny does well you're  the sessions just last year where there was a similar case where an alien relied on counsel to file a document and the council did not do so basically said continues in or except son authorized employment prior to or who is unlawful immigration status on the date of the filing they've come up with their own idea of what we ought to think about that so i again i'm back the point i don't know why no fault of your own is at all ambiguous and therefore why we ought to have a regulation at all while it is it is on because you are now and the way the regulation has  there are at least a half a dozen cases in that this records and the th circuit which have said that the agency is too narrowly construed the term and the government least as far as i could tell acquiesced in those decisions those were the district court the citizens there probably at a time when before congress and its great wisdom took them away from district judges but the you acquiesced in that and so what could we draw from already a fairly weak presumption about about congressional desire to  a due process and whether there's some sort of due process right to the effective assistance of counsel where you could simply say when counsel has an effect of is it her fault  regardless of whether that the ineffectiveness is somehow violates the constitution you know the petition has not been making well he goes back to the very issues the important issue here that substantial evidence  as i read i camped i can't put my finger on it immediately but there is a paragraph in your brief that actually quotes what the position what the petition or a petition it was saying and she was reserving the right to argue ineffective assistance of counsel but she was saying she wrote her she was relying on the fact that he had but it seems to me you wanted both heard she said number see well she said she reserve the right well reason a good end and what your adversary said it is that it wasn't they suspect wasn't the th amendment due process my view it's he was ineffective he letter to believe that he did and it wasn't her fault but it's not making that claim as we stated in our brief you on that petition i straddle the fence on this particular issue the specific but let's take in the general if we were to find that an effective assistance of counsel can be no fault is that the governor government's position  that he was at fault and that has not been done well there is to minute but just commit if you say that yes they need to comply with lozada why hasn't enough been done here that there was no reason to comply because council got up and conceded ineffective assistance of counsel in the hearing said i either mailed it or i was ineffective assistant if that if you really are page eight of your read brief as a response to the question mr peter mrs miss peters counsel stated that miss peters was not asserting ineffective assistance of counsel but reasonable reliance on her attorney and then stated that miss peters was not waiving an ineffective assistance of counsel claim for the purpose of appeal that's how you characterize  so i don't see how you can come up here and say that somehow this is a she can't make an argument that she preserved specifically it says this peter stated she was not asserting ineffective assistance of counsel but reasonable  suppose he didn't mail it suppose he didn't do what he was obligated to do as and was retained by her employer to do is that her fault isn't isn't that doesn't that on the government's position is that the statute the u s p s is interpretation of the statute is guided by congressional intent and entitled to difference because it is reasonable the agency has delineated at the circumstances under which the no fault concept applies and it is in situations where for example there is a school and a student an f one student files an application and the agency the representative the agency sense i mean she understood that he was a he was reapplying as i read it what what what the agency has done here with this reg is to make  up exceptions or rules that that are but should have been made up by congress as are smith pointed out when congress wanted to create exceptions that well whatever congress leaves i mean let me take it on a little bit different and i looked at footnote fourteen of your brief it's on page thirty two it seems to me that you're conceding in footnote for he that ineffective assistance could be no fault under the interpretation of the regulation in fact that what you did see has said that in certain specific instances they could look at that and  argument is that since petition is not alleging here and has stated that there is no ineffective assistance here she has not availed herself of that well all you're saying is since she hasn't complied designated by regulation act on her behalf that is not how the agency which is mandated by congress to interpret the statute has interpreted mailed the document and that failed to educate and substantial evidence on the record shows that that's not that didn't happen all right let me ask you one more would the equitable tolling be in the numerator did in the regulation addressing fault  towards applying for adjustment of status they are true totally different things applying for adjustment of status and being out of status and so the regulation applies only to the that aspect of the thing you are not it doesn't apply to the not support the finding that she didn't mail it right that we thought that there was enough evidence that the attorney richmond actually did send it in the mail do you concede that that she wins and that's an area and no we do not you are not we don't concede that she wins because she has not availed herself of the opportunity specified in the regulations that her agent admit that there was an error that had got you misunderstood my question i'm saying let's say that we found that the evidence supported the view that he did mail it oh if you found that he didn't let's say we found that he did mail it and any finding to the contrary was unreasonable not supported by substantial evidence by the agency in that scenario do you can see that she would win and you're saying that she would weigh in on that on there and i'm asking you if you are a seed in that scenario we find that there was evidence that he did mail it there was evidence but there's no evidence yeah well i mean she agrees with you even which is why i'm asking the question i'd like to make two points the st is what the petitioners position is on the no fault exception part of the problem here is that the immigration court by the structure of these regulations forced the petitioner to pick a lane had to say the agency did not receive the mailing or had to say that mr richmond was ineffective as counsel but we don't know what happened here it sure looks like the agency received  the package it sure looks like there's a lot of evidence that it was sent in the mail and that from the foyer requests there there's all sorts of strange things about her file that suggest that the i want twenty nine petition was actually received but if that's not the case  then it would be that then the fact would be that mr richmond was lying all along about having sent in this petition and deceived his client about having sent it in after it was sent in after there was no  receipt mr richmond petitioner's employer and petitioner himself tried to contact this agency trying to get an answer about why they weren't having this petition adjudicated they resorted to writing to congressman and the white house and the governor of california for help in getting this petition result so either there is an elaborate conspiracy here that everybody knew that it wasn't sent in and we were pretending otherwise or more likely the package was sent and the agency received it and lost it so no matter what happened under the facts it wasn't the petitioners fault that's that's the argument here that's what's key petitioner doesn't need petitioner had to do something or face consequences so this one hundred and eighty dollars day period created an administrative deadline which this court's precedents make clear are subject to quibble tolling ok thank you very much and before you leave let me on behalf of the court thank you for