F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

H A I M A T T I A S , Plaintiff-Appellant

,

v

.

K R I S T I N E R. C R

A N D A L L , Acting Center Director of Nebraska Service Center, U.S. Citiz enship and I mmig ration Services,

Defendant-Appellee. N o. 18-56629

D.C. No. 2:18-cv-02334- DMG-J C

OPI NI ON

A ppeal from the United States District Court for the Central District of California Dolly M. Gee, District J udg e, Presiding

Arg ued and Submitted F ebruary 14, 2020 Pasadena, California

F iled J uly 30, 2020

B efore: J ay

S. B y bee and Daniel P. Collins, Circuit J udg e s, and B arry

Ted Moskowitz

, * District J udg e.

Opinion by

J udg e B y bee

* T h e Ho n o rab le B arry T ed Mo sk o w itz, Un ited States District J u dg e f o r th e So u th ern District o f Calif o rn i a, sittin g b y

d esig n atio n

.A T T I A S V

. C R A N D A L L 2

SUMMARY * *

Im m igration

Affirming the district court’s g rant of summary judg ment to the United States Citiz e nship and I mmig r ation Services (USCI S), the p anel held t h a t Haim Attias was inelig ible for adjustment of st atus to lawful-permanent-resident status because he failed to establish that his lapse in lawful i mmig ration status was “ throug h no fault of his own or f o r technical reasons.”

Under 8 U.S.C. § 1 2 5 5 (c)(2), a n alien is barred from adjusting status if he “has failed (other than throug h n o fault of his own or for technical reasons) to maintain continuously

a lawful status since entry into the Uni t e d S t ates.” A s relevant here, an i m p lementing reg ulation, 8 C.F .R. § 245.1(d)(2)(ii), interprets the phrase, “other than throug h no fault of his o wn or for technical reasons,” to mean a “technical violation resulting from inaction of [ USCI S]

. ” Also as relevant here, only a lapse in s t a t u s ex ceeding 180 day s will preclude adjustment.

Attias wa s gr anted a B -1 employ ment visa, and the day before the visa ex pired, he applied for an ex tension of the visa. More than a y ear later, USCI S d e n ied the ex tension. A t t i a s had a lso filed an application for a djustment of stat u s based on h is employ er’s petition for an immig rant visa o n his behalf. After Attias’s v i sa e x tension w as denied, USCI S denied the ad

j u stment a

p plication on the g round that he h ad

** T h is su m m ary co n stitu

t es n o p art o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.A T T I A S V

. C R A N D A L L 3

failed to maintain valid leg al status f o r a period of over 180 day s.

The district court ag reed with USCI S, relying on USCI S’s Policy Manual

, which interprets 8 C.F .R. § 245.1(d)(2)(ii) to

mean that if an application for a visa e x tension is ultimately denied, an alien’s leg al status lapses on the visa’s ex piration date, and no “technical violation” resulting from USCI S inaction has occurred.

Th e p anel considered w hether 8 C.F .R. § 245.1(d)(2)(ii) is “g enuinely ambig uous” such t h at the issue of deference
must be considered. Ex amining the lang uag e of t he
reg ulation, the panel concluded that a “ technical violation”

occurs only if the violation is a consequence of USCI S’s inaction o n a pending application; if the violation is caused b y any thing w ithin the a lien’s contr ol, such as substantive inelig ibility for an ex tension of lawful status, the r e i s no “technical v iolation.” Addressing the s c enario where, a s here, an a lien claims that a lapse in s t a t u s w as caused b y USCI S’s inaction o n an application t o ex tend lawful status, the panel thus concluded that a “t echnical violation” occurs only if the alien’s applica t i on to maintain lawful status is ultimately

g ranted.

B e cause the panel concluded that this is the only w ay the
reg ulation can be read, it c oncluded that the t e x t is not “g enuinely ambig uous,” and thus, the panel c oncluded that it need not g rant Auer deference t o U S CI S’s interpretation o f the reg ulation. However, the panel noted that it wo u l d hold USCI S’s interpretation to be reasonable if it were to reach the issue of deference.A T T I A S V

. C R A N D A L L 4

W ith respect to Attia s , the panel concluded that his unlawful status resulted from his failure to demonstrate entitlement to a

n ex tension of his B -1 status, meaning that the l a p s e was not ex cused as h aving occurred “throug h no f a u l t of his own or for technical reasons.” Moreover, because the lapse ex ceeded 180 day s, the panel concluded that Attias was inelig ible of adjustment of status.

COUNSEL

J onat h an R. Sturman (arg ued) and David M. Sturman, L aw Office of David M. S t u rman APC, Encino, California, for Plaintiff-Appellant.

Eliz abeth D

. Kurlan (arg ued) and Daniel P. Chung

, Trial Attorney s; Samuel P. Go, Senior L itig ation Counsel; Glenn M

. Girdharry

, A ssistant Director; W illiam C. Peachey

, Director; J oseph H. Hunt, Assistant Attorney General; Office of I mmig ration L itig ation, Civil Division, United S tates Depa rtment of J ustice, W ashing ton, D.C.; f or D efendantAppellee.

OP INION

B YB EE, Circuit J udg e:

The United States Citiz enship and I mmig r ation Services (USCI S) denied Appellant Haim At t i a s’s application for lawful-permanent-resident status. USCI S f o u n d that Attias had failed to continuously maintain lawful status prior to the filing o f h is application, rendering him i n e l i g ible for an adjustment in status. See 8 U.S.C. § 1255(c). Attias filedA T T I A S V

. C R A N D A L L 5

suit, claiming that his lapse in lawful status is e x cused because the lapse occurred “throug h no f ault of his own or for technic a l r e a sons.” Id. Thus, Attias c ontends that USCI S’s decision should be “se t aside” u nder the Administrative Procedure Act (APA) beca u s e it is “not in accordance with law.” 5 U.S.C. § 706(2). The district court disag reed a nd
g ranted summary

judg ment to USCI S. W e affirm.

I . B ACKGROUND AND PROCEEDI NGS

A. Statute, Regulations, and USCIS Guidance

After being lawfully “admitted or paroled into the United States,” an al i e n ’ s status “may be adjusted” to lawful permanent r esident if certain c onditions are met. 8 U.S.C. § 1255(a). B ut an alien is categ or i c ally prohibited from obtaining an adjustment o f status if the alien falls into one o f eig ht categ ories enumerated in 8 U.S. C

. § 1 2 55(c). The relevant categ ory

for our purposes is the second one. Under
t h a t p rovision, an alien is b arred from adjusting status if the alien “has failed (other than throug h no fault of his own or for technical reasons) to maintain co n tinuously a lawful status since entry into the U nited States.” Id. § 1255(c)(2). I n other words, an alien is inelig ib l e f or lawful-permanent-resident
status if the alien’s lawful status has lapsed at any point since entering the country , unless the alien d emonstrates the lapse

o c curred “throug h no fault of his own o r for tech n i c al reasons.” Id.

The statute provides no further d efinition of the phrases

“ l awful status” or “throug h no fault of his ow n o r f o r technical reasons.” See id. B ut an implementing reg ulation d o es. A s relevant here, the reg ulation d efines “[ l] a wf u l immig ration status” as “[ a] n alien admitted to the Un itedA T T I A S V

. C R A N D A L L 6

States in nonimmig rant status

. . . w h o s e i nitial period o f admission has not ex pired o r whose nonimmig rant status has been e x t e nded.” 8 C.F .R. § 245.1(d)(1)(ii). The reg ulation also interprets “[ t] he parenthetical phrase other than throug h

no fault o f his or her own or for technical reasons” to m e a n “[ a] technical violati o n r e sulting from inaction of [ USCI S] (as for ex ample, w here an applicant establishes that he o r she properly filed a timely request to maintain status and [ USCI S] h a s not y et acted on that r equest).” Id. § 245.1(d)(2)(ii )

. 1 Thus, if an alien’s lapse in lawful status “resu l t [ s ] from inaction of” USCI S, the lapse is ex cused and will not render the alien inelig ible for adjustment of status under § 1255(c). Id.

The f

inal relevant statutor y provision is 8 U .S.C. § 1255(k). That provision creates an ex ception to § 1255(c)’s categ orical bar on a d

justing status even when an alien’s lapse in lawful s t a t u s i s the alien’s fault. Under § 1255(k), if an alien is elig ible for certain e mploy ment-related visas, a lapse in lawful status will not preclude the alien from o b taining an adjustment o f status so long as the l a p s e did not ex ceed an “a gg r eg ate period” of 1 80 day s. Id. § 1255(k). 2 Put differe n t ly

, § 1255(k) creates a blanket 180-day “g race period” f or particular a l i e n s

. See Peters v. Barr
, 954 F .3d 1238, 1240 ( 9th Cir. 2020). These i n dividuals are not prohibited from adjusting status because of a lapse in lawful

1 T h e reg u latio n d escrib es th ree oth er si tu atio n s th at satisf y § 1 2 5 5 (c)’ s p aren th etical p h rase, n o n e o f w h ich is r e l e v a n t h ere. S ee 8 C.F.R. § 2 4 5 .1 (d )(2 )(i), (iii)– (iv ).

2 S ectio n 1 2 5 5 (k ) co n tain s sev eral o th er co n ditio n s an alien m u st m eet to tak e ad v an tag e o f th e 1 80

- d ay g race p erio d

, b u t th ose co n d i t io n s are n o t at issu e.A T T I A S V

. C R A N D A L L 7

status unless the la p s e ex ceeded 180 d ay s, at which point § 1255(c)’s prohibition would apply

.

Two documents created by USCI S e x p l a in the ag e ncy ’s interpretation of these s t atutory and reg ulatory provisions when adjudicating an alien’s application to adjust status. The first d ocument is a memorandum issued i n 2 0 0 8 by D onald Neufeld revising USCI S’s Adjudicator’s Field M a nual, Chapter 2 3

. 5 ( d )

. Memorandum from Donald N eufeld, A cting Assoc. D ir., Domestic Operations, United States Citiz e nship and I mmig ration Services ( J uly 14, 2 0 0 8) [ hereinafter Neufeld Memo]

. The Neufeld Memo primarily f o c used on the interaction between § 1255(k) a n d § 1 255(c). S

ee id. at 1.

As relevant here, the Neufeld Memo ex plored the concept of “lawful immig ration stat u s ” and the effect a pending application for an ex tension o f or adjustment in status has on

an alien’s leg al standing

. Consistent w i t h the reg ulatory definition of “lawful immig r ation status,” the Neufeld Memo
notes that “[ e] x piration, revocation, or v iolation of status puts

a nonimmig r ant out of status, and the a l i e n r emains out o f
status until some adjudication re s tores status or the alien departs the United States.” Id

. a t 5. Thus, merely filing an application to ex tend lawful status does not g rant the alien lawful status: “ T h e p eriod d uring which an alien h as a pending [ ex tension of stay ], [ chang e of status]
, or adjustment of status a

pplication does not constitute, in and of i t s e l f, a period in which the alien is in a lawful ‘status.’” Id. a t 6. 3 I f,

3 B y w ay o f ex am

p le, th e Neu f

eld Mem o states, “ if an alien ap p lied f o r ad j u stm en t o f statu s th ree d ay s prio r to th e ex p i r a t i o n o f h is o r h er

n o n im m ig ran t s tatu s an d th e ad j u stm en t o f statu s ap p licatio n w as

ev en tu ally d en ied

, th e alien w i l l n o t b e co n sid ered to b e in law f u l statu s af ter th e ex piratio n

o f th e n o n im

m ig ran t statu s .” Neu f

eld Mem o at 5

.A T T I A S V

. C R A N D A L L 8

however, the application is “ultimately a p proved,” USCI S will treat the alien as if “the a lien was in a lawful nonimmig rant status” d

uring the application’s pendency

. Id. Additionally

, the Neufeld Memo took the position that where the unlawful status resulted from a “ ‘ technical violation’ o r throug h no fault of the a pplicant,

. . . such period does not count ag a inst the 180-day p eriod” allowed by § 1255(k). Id.

The second document p r o mulg ated by U SCI S is the
ag ency ’s Policy Manual

. I n Volume Seven, Part B , Chapter F our of the Policy Manual

, USCI S provides g ui d a nce for apply ing 8 C.F .R. § 245.1(d)(2). Recall t h at this reg ulation interprets § 1255(c)’s ex culpatory clause—“throug h no fault [ of the a lien] or for te c h nical reasons”—to include “[ a] technical violation resulting from inaction of [ USCI S] (as for

ex a mple, where an applicant establishes that h e o r she properly filed a timely request to maintain status and [ USCI S] has not y et acted on that request).” 8 C.F .R. § 245.1(d)(2)(ii). According to the Policy Manual

, an a lien may take advantag e of this reg ulatory provision o nly if, prior to the ex piration of the alien’s lawful status, the a lien “ f i l e d an application to

ex tend or chang e nonimmig r ant status that was meritorious in fact, not frivolous or fraudul e n t , or otherwise desig n ed to delay removal or departure from the U nited States.” Mirroring the analy sis set forth in the Neuf e l d M e m o , the Policy Manual notes that if the application is ultimately approved, “ the start date of the ex tended status is retroactive
to the ex piration date of the initial o r previously ex tended period of status.” B ut if the a pplication is denied, the alien’s leg al status lapsed on the ex piration date, and “[ a] technical violation resulting from inaction of [ USCI S] ” has not occurred. See 8 C.F .R. § 245.1(d)(2)(ii).A T T I A S V

. C R A N D A L L 9

To illustrate this point, the P olicy Manu a l provides the following ex ample. An alien’s leg al status will e x pire on J une 30, 2009. Prior to that d ate, o n J u ne 1, the alien files an application to ex tend his leg al status for six months. USCI S does not act on that application before J une 30, so the alien’s lawful status ex pires. On Aug ust 1, 2009, the alien then f iles

an application to adjust status. T he Policy Ma n u al ex plains that if USCI S eventually g ra n t s the J une 1 application to

ex tend status, “USCI S considers the [ a lien] to have continuously maintained la wf ul status for purposes o f adjusting status.” I n other words, the lapse in lawful status is forg iven as a “technical violation resulti n g from inaction o f USCI S.” O n the other hand, “if USCI S denied the ex tension application, the [ alien] would have f allen out o f s t atus as o f J une 30 and would be b arred from adjusting status, unless an

ex e mption applies.” Thus, ac c o rding to USCI S’s Policy Manual

, w hether an alien who filed a time l y application to

e x t e n d s t a t u s m a y t a k e a d v a n t a ge o f 8 C

. F. R

. § 245.1(d)(2)(ii) depends on USCI S’s final resolution of the

ex tension application.

B

. Facts and Proceedings

W ith the leg a l framework and ag ency g uidance in mind,

we now turn to the facts of this case. Attias, a c itiz en o f I srael, was admitted to the United States o n a B- 2 nonimmi grant visa in 2015. His B

- 2 visa was valid until November 2, 2015. I n Septemb e r 2 0 1 5, Attias filed an application t o c hang e his B -2 visa to a B -1 visa. 4 USCI S approved Attias’s application, chang ing Attias’s status to a

4 A B

- 1 v isa is f

or b u s in ess p u r p oses. A B

- 2 v i sa is g en erally f or to u rism

. S

ee 8 U.S.C. § 1 10 1 (a)(1 5 )(B ).A T T I A S V

. C R A N D A L L 10

B -1 nonimmig rant visa. Attias’s B -1 visa w a s valid from F ebruary 29, 2016 to April 2, 2016.

O n A pril 1, 2016, the day before his B -1 visa ex pi r ed

, Att i as filed a F orm I -539 Application to Ex tend/Chang e N o n immig rant Status ( F orm I

- 539) requesting a n ex tension

o f h i s B -1 visa until October 5, 2 016. USCI S did no t immediately act on this request, so A ttias’s B -1 visa ex pired the nex t day

. W ithout the visa, Atti a s ’ s continued presence in the United States was unlawful.

USCI S first responded to A ttias’s F o rm I -539 on J u ly 19, 2 0 1 6, when it requested that Attias submit additional evidence supporting his cont i n ued e lig ibility for a B -1 v isa. Attias r esponded to the request for evidenc e on A ug ust 16, 2016. Nearly a y ear later, on J u ly 25, 2017, USCI S denied A ttias’s application to ex tend his B -1 v isa, ex plaining t h at Attias had failed to demonstrate that h i s presence in the United States would be temporary , making him inelig ible for the visa.

Attias did not c h a l l eng e that decision. I nstead, even before his request to ex ten d h is B -1 visa was denied, Attias beg an attempting to o btain leg al status throug h other means. On J anuary 26, 2017, his e m p loy er filed a F orm I -140 I mmig r a nt Petition for Alien W orker, which was g ranted on November 29, 2017. I n c onjunction with that filing

, Attias filed a F o rm I -485 Application for A djustment o f Status (F orm I

- 4 85), requesting he be g iven lawful-permanentresident status.

USCI S denied the F orm I -485 on F ebruary 9, 2018. Rely ing on § 1255(c), § 1255(k), and 8 C.F .R. § 245.1, USCI S ex plained that because Attias’s F orm I -539A T T I A S V

. C R A N D A L L 11

applica t i on to ex tend his B -1 visa was denied, Attias’s “nonimmig rant st a t u s ex p ired on April 2
, 2016.” According ly

, the ag ency found that Attias “failed to maintain

a valid nonimmig rant status f r om April 3, 2016 to J anuary 25, 2017 w hich constitutes 9 months and 2 3 day s (i.e. 298 day s).” B ecause this lapse in leg al status ex ceeded 180 day s, USCI S d e t e r mined that § 1255(k) did n ot apply

. Thus, USCI S concluded that Attias was “restricted from adjusting [ status]

as described u n d e r [ 8 U.S.C. § 1255] ( c)(2), (7) or ( 8),” so Attias’s “application may not be approved.” 5

Attias timely soug ht reconsider a t i o n o f USCI S’s decision. He c laimed that his lapse in lawful status was ex cused under § 1255(c) because the lapse occurred “ throug h no fault of his

own or for technical re a s o n s .” Rely ing on 8 C.F .R. § 245.1(d)(2)(ii), Attias arg ued that USCI S’s delay

in acting

on his timely f

iled F orm I -539 c aused a technical violation,

ex c u sing his unlawful status.

US C I S d enied the motion to reconsider. Citing the Neufeld Memo, USCI S ex p lained that a n individual falls “ out of status” upon “[ e] x p iration, revoc at i o n, or violation o f status,” and the pendency o f an “appl i cation does not constitute, in and of itself, a period in which the alien is in a lawful ‘status.’” W hen Attias’s B -2 visa ex pired on April 2, 2016, Attias was no long er in lawful status. E v en t h oug h USCI S’s i n a ction on Attias’s F orm I -539 “appears to have

5 Becau se h is em

p lo y er’ s Fo rm I- 1 4 0 w as g ran ted

, USCIS co n sid ered A ttias to be i n a law f

u l statu s b eg in n in g o n Jan u ary 2 6
, 2 0 1 7
, th e day th at I- 1 4 0 ap p licatio n w as f

iled

. A ttias w a s t h eref

o re in law f

u l statu s o n th e d ay h e f iled h is Fo rm

I- 4 85 ap p licatio n

to ad j u st h is s tatu s. C

f. 8 U.S.C. § 1 2 5 5 (c)(2 ) (n o tin g th at i t is g en erally an i n d ep en d en t b ar to ad j u s tm en t

o f statu s if th e alien “ is in u n law f u l im m ig ratio n statu s o n th e d ate o f f ilin g th e ap p licatio n

f o r ad j u stm en t .”).A T T I A S V

. C R A N D A L L 12

e xc e e d ed normal processing times,” USCI S ultimately denie d the F orm I -5 3 9

. An d because the F orm I -539 was denied, “the period during which [ that] application was pending does
not constitute a lawful s t a t us.” Thus, Attias “failed to maintain a valid n onimmig rant status” for 298 day s, rendering him inelig ible for a n adjustment of status to lawful permanent resident.

F ollowing USCI S’s denial of his motion to reconsider, Attias initiated this lawsuit

. He requested that USCI S’s judg ment b e set aside under the APA. Attias contended that USCI S had misread the statute and reg ulation, arg uing that USCI S’s delay in adjudicating his F orm I -539 caused a

“ technical violation” under 8 C.F .R. § 245.1(d)(2)(ii) th at

ex c u sed his failure to maintain lawful status.

The district court rejected Attias’s arg ument and g ranted
summary ju d gm e n t to USCI S. I n its summary -judg ment order, the district court sua sponte took judic ial notice o f USCI S’s Policy Manual

. The court found that th e Policy Manual ’s interpretation of 8 C.F .R. § 245.1(d)(2)(ii) was “ not plainly erroneous or inconsistent with” the r eg ulation, so that interpretation must control. And u n d e r USCI S’s interpretation, Attias’s lapse in lawful status was not e x cused because USCI S ultimately deni e d his F orm I -539. According ly

, U S C I S’s d enial of Attias’s I -485 was not contrary to law under the APA.

F ollowing entry of the summary -judg ment order, Attias filed a motion for reconsideration. The district court denied the motion, and this appeal followed. 6

6 T h e d i strict co u rt h ad j u risd ictio n u n d er 2 8 U.S.C. § 1 3 3 1

. W e h av e j u risd ictio n

p u rsu an t to 2 8 U.S.C. § 1 2 9 1

.A T T I A S V

. C R A N D A L L 13

I I . ANAL YSI S

Under the APA, a “reviewing court shall

. . . h old unlawful and set aside ag ency ac t i on, finding s, a nd

c o n clusions found to b e

. . . not in accordance with l a w

. ” 5 U.S.C. § 706. Attias a rg ues that USCI S’s denial o f his F or m I

- 539 on the g r ounds that he f ailed to continuously maintain lawful status is contrary to § 12 5 5 ( c ) and 8 C.F .R. § 245.1(d)(2)(ii). I n his view, the f a cts of this case fall squarely within the tex t o f the r eg u lation—he “ filed a timely request to maintain status” and USCI S did n o t “act[ ] on that request” between A p ril 3, 2016 a nd J a nuary 25, 2 017, the period of his lapse in lawful status. See 8 C. F.R. § 2 4 5

. 1 ( d ) ( 2)(ii). As a result, his lapse in lawful status was the result of a “technical violation” and should be ex cused.

USCI S takes a different view. I t contends that i t s i n t e rp retation of 8 C.F .R. § 245.1(d)(2)(ii) set forth in the Policy Manual is entitled to deference. A n d u n der that interpretation, no “technical violation” occurred here because Attias’s F orm I -539 was ultimately d enied. Thus, he f ell out of lawful status when his B -1 v isa ex p ired on April 3, 2016, and that lapse in lawful status is not ex cused, precluding him from o btaining an adjustment of st a t u s t o lawful p ermanent resident.

W h en faced with an a ge n c y ’s interpretation o f its o wn reg ulation, we must first determine whether the reg u lation is

W e rev iew th e d istrict co u rt’ s g ran t o f su m m ary j u d g m en t to USCIS d e n o v o

. Bru no zzi v. Ca b le Co mmc’n s, In c. , 85 1 F.3 d 9 9 0
, 9 9 5 (9 t h Cir. 2 0 1 7 ). W e m ay af

f irm th e d i strict co u rt’ s j u d g m en t “ o n an y g ro u n d

su p p o rted b y th e r e c o r d

. ” L ima v. U.S

. Dep ’t o f Ed u c. , 9 4 7 F.3 d 1 1 2 2
, 1 1 2 5 (9 th Cir. 2 0 2 0 ).A T T I A S V

. C R A N D A L L 14

“g enuinely ambig uous

. ” K i sor v. W ilkie

, 139 S. Ct. 2400, 2414 (2019). To determine if a reg ulation’s tex t is g enuinely ambig uous, we must “re s ort[ ] to all the standard tools o f interpretati o n , ” including analy sis of the reg ulation’s “ tex t,

s tructure, h istory

, a

n d purpose.” Id. at 2414–15. I f t h e reg ulation’s tex t is unambig uous, w e g ive no deference to the
ag ency ’s interpreta tion: “ [ t] he reg u lation then just means what it means.” Kisor
, 139 S. Ct. at 2415

. But if the
reg ulation is ambig uous, we will defer to the ag e ncy ’s interpretation so long as that interpretation is “reasonable,” is based on the ag ency ’s “substantive ex pertise,” “reflect[ s] [ the
ag ency ’s] fair a

nd c onsidered judg ment,” and represents “the
ag ency ’s authoritative or official p o s ition.” Id. at 2415–17 (internal quotation marks omitted).

As we previous ly noted, the reg ulatory provision primarily at issue here is 8 C.F .R. § 2 45.1(d)(2)(ii), w h i c h interprets § 1255(c)’s parenthetical e x c u l p atory c lause to include “[ a] technical violation resulting f r o m inaction o f [ USCI S] .” T h e key tex tual p hrase for our purposes is “resulting from.” T h e phrase seems plain enoug h, b ut our instincts are confirmed in various dictionaries, which define “result” as “to proceed or ar ise as a consequence, effect, o r conclusion.” Result

, M e rriam-W ebster.com (last visited J u ne 23, 2020); see also Result

, B lack’s L aw Dictionary (11th ed. 2019) (defin i n g “result” a s “[ t] o be a p hy sical, log ical, o r leg al consequence; to proceed as an o utcome or conclusion”); Result

, Ox ford E ng lish Dictionary Online (last visited J u ne 23, 2020) (defining “result” as “[ t] o arise a s a consequence, effect, or outco m e o f some action, process, or desig n”). Consistent with these defin i t i o ns, a “technical violation”

occurs under the reg ulation on l y if the violation is a consequence or effect of USCI S’s inac t i o n on a pending application. I n other words, the alien’s lapse in lawful statusA T T I A S V

. C R A N D A L L 15

must be caused by bureaucratic delay

. I f the lapse is c aused by any thing within the alien’s c o ntrol, including a failure to anticipate his deadlines, this subsection o f the reg ulation does
not apply

. See Xiao Lu Ma v. S essions
, 9 07 F .3d 1 191, 1199 (9th Cir. 2018) (ex p laining how the alien mig ht have avoided “inflex ible requirements [ that] inevitably produce p a inful outcomes”).

This reading of the phrase “resulting from” inf o r ms our interpretation of the ex ample set forth in the r eg ulation’s tex t. Recall that the reg ulation articulates the f ollowing ex ample o f

a technical violation: “where an applicant establishes that he

or she properly filed a timely requ est to maintain status a nd [ USCI S] h as n o t y e t acted on that request.” 8 C.F .R. § 245.1(d)(2)(ii)

. I f read in isolation, this ex ample appears to cast a broad net—so long as a n alien f iles a timely a

pplication
to maintain status, a ny lapse in leg al status is ex cused while that application remains pending

, even i f t he lapse is not caused by USCI S’s inaction. B ut such a broad interpretation is inconsistent with the tex t of the re g u l a t i o n as a whole. I ndeed, this interpretation w ould nullify the requirement that the lapse “result[ ] from” USCI S’s inaction. See id.

Simple hy potheticals will d e monstrate the p o i n t

. Suppose that an a lien files a timely

, meritorious application to ex tend
status. I f U SCI S a cts w i th instantaneous dispatch, the application will be g ranted and there w ill be no lapse in t h e alien’s status. I f, however, U S C I S does not act with such dispatch, the alien will be t e m p o r arily out of status u ntil the application is g ranted. USCI S considers that g ap in status to be “[ a] technical viola t i on resulting from inaction o f [ USCI S] .” 8 C.F .R. § 245.1(d)(2)(ii). The technical violation is e x cused under § 1 255(c )

. L et’s chang e the hy pothetical. Assume a n alien files a clearly frivolous application to ex tendA T T I A S V

. C R A N D A L L 16

lawful status jus t b e fore the alien’s lawful status ex p ires. USCI S does not act on that application for several months, so the a lien’s lawful status lapses. B ecause t h e a p p l ication is frivolous, USCI S will eventually deny it. I n this scenario, the

a l i en’s lapse in lawful status did not result from U S C I S ’s inaction, but instead r esulted from the alien’s substantive inelig ibility for an e x tension of lawful status. That lapse is
not a “ technical violation” ex cused under § 1 255(c). A “technical violat i o n ” thus o ccurs only if the alien’s application to maintain lawful status is ultimately g ranted. See 8 C

. F. R

. § 245.1(d)(1)(ii) (stating that an alien is in lawful immig ration status o nly if the alien’s “admission has

n o t e xpired or w hose n onimmig rant status has been extended ” (emphasis added)).

Attias raises two objections to this reading

. F irst, Attias
arg ues that § 1 255(c)’s ex culpatory clause “is e q u i t a ble in nature,” so it should be interpreted broadly

. Gener a lly

, an ameliorative “rule will be interpreted a nd applied in an ameliorative fashion,” especially in the immig ration contex t. Hernandez v. Ashcroft

, 345 F

. 3d 824, 840 ( 9 t h Cir. 2003). B u t this canon of c o n struction “do[ es] not override the principle that the ordinar y meaning of words

. . . controls.” Durand v. U.S. Dep’t of

Labor

, 662 F .3d 1106, 1109 (9th Cir. 2011).

Second, A t t i as claims that this reading renders 8 C.F .R. § 245.1(d)(2)(i i) entirely superfluous, and so it cannot be
correct. See Marx v. Gen. Rev. Corp.
, 568 U.S. 371, 385–86 (2013). A ttias p o i n t s o ut that § 1255(c) and 8 C.F .R. § 245.1(d)(2)(ii) only apply when an alien “fai l [ s ]

. . . to maintain continuously a lawful status.” 8 U .S.C. § 1255(c). T h us, in Attias’s view, if USCI S considers an alien to have never fallen out of lawful status when it ultimately g rants anA T T I A S V

. C R A N D A L L 17

application, § 1255(c) and 8 C.F

. R. § 245.1(d)(2)(ii) would never apply

.

W e d isag r ee. W hen an a lien’s lapse in lawful status

occurs “throug h no fault of his own or for technical reasons,” the lapse is ex cused and USCI S w ill treat the alien as thoug h he had c ontinuously maintained lawful status. 8 U .S.C. § 1255(c); 8 C.F .R. § 245.1(b)(6). I t makes no d i ff e re n c e whether we would say that USCI S h as eng ag e d in a leg al fiction or that USCI S has g iv e n retroactive effect to the application for an ex tension. I f an alien’s lapse qualifies for § 1255(c)’s e x culpator y clause, the a lien will be considered
to have neve r b e e n i n unlawful status. The only reason USCI S can c onside r a n alien “ to have continuously maintained lawful s t a t us” when it ultimately g rants an application to ex tend lawful s t at u s is because it is commanded b y § 1 255(c) to ig nore a l a p s e in status that occurred for “technical reasons.”

B e cause we believe this is the only way the reg u lation can be read, we conclude that the tex t i s not “ g enuinely ambig uous.” W e thus need no t g rant Auer deference to USCI S’s interpretation of t h e r eg ulation. See Kisor
, 139 S. Ct. at 2414. 7 A n d gi v en our reading of the reg ulation, this

case is easily resolved. Attias’s lapse in lawful status was not caused by USCI S’s inaction. To the contrary , Attias’s lapse resulted f r om his substantive inelig ibility for an ex tension o f

7 We n ote th at USCIS’ s Neu f eld Mem o an d Po licy Ma n u a l read th e reg u latio n th e sam e w ay w e h av e. Ev en w ere w e to reach th e qu estio n of Au er d ef ere n c e , a fo rtio r i
, w e w o u ld h o ld USCIS’ s in terp retatio n to b e

reaso n ab le. See Ba ssiri v. Xero x Co rp

. , 4 6 3 F.3 d 9 2 7
, 9 3 1 (9 th Cir. 20 0 6) ( “[ W]e d ef

er to [an ] ag en cy ’ s in terp retatio n o f its reg u latio n u n les s a n altern ativ e read in g is co mp elled b y th e reg u latio n ’ s p lain lan g u ag e

. . . .” (in t ern al q u o tatio n

m ark s o m i tted )).A T T I A S V

. C R A N D A L L 18

his B -1 visa. B y ul t i m at ely deny ing Attias’s F orm I -539, USCI S found that Attias failed to demonstrate his entitlement
to an ex tension of B

- 1 s t a t u s

. That failure, not USCI S’s attendant delay in adjudicat i n g t h e F orm I

- 539, resulted in Attias being in unlawful statu s

. According ly

, Attias’s lapse in lawful status did not occur “throug h no fault of his own o r for technical reasons,” so the lapse is unex cus e d

. 8 U .S.C. § 1 255(c); 8 C.F .R. § 245.1(d)(2)(ii). An d because the duration of his lapse in law f u l s tatus ex ceeded 180 day s, Attias may not take advantag e of the 180-day g race period in § 1255(k). According ly

, he is inelig ible for an adjustment o f
status to lawful-permanent-resi d e nt status. See 8 U .S.C. § 1255(c); see also Xiao Lu M a , 907 F .3d at 1199. USCI S’s denial of Attias’s F orm I -485 w as not c ontrary to law und er the APA, and the district court’s g rant of summary judg ment to USCI S was proper.

I I I

. CONCL USI ON

W e conclude Attias “failed . . . to maintain continuously

a lawful status since entry into the United S t ates.” 8 U .S.C. § 1255(c). He is thus statutorily inelig ible for a n adjustment of status to lawful permanent resident. The judg ment of the district court is

AF F IRMED.