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 nonimmigrant 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 nonimmigrant 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 I129 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 EspinozaGutierrez 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.