No Fault/technical Reasons

• Publication year: 2023

No Fault/Technical Reasons

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A Postmortem on Flawed Rulemaking and Its Effect on Nonimmigrant Status Breaches

Martin Robles-Avila ^*

Abstract: Entering "the dense thicket" of the adjustment of status bars at § 245(c)(2), this article explores the marred agency rulemaking that implemented (c)(2)'s exculpatory clause ("other than through no fault of his own or for technical reasons"), designed to overcome lapses in maintaining status; that undertaking resulted in an overly narrow definitional regulation at 8 C.F.R. § 245.1(d)(2). The article reveals how the rulemaking effort failed to account for a change in the statutory language effected by the Technical Corrections Act of 1988 (the addition of the conjunction "or" prior to the phrase "for technical reasons"), which broadened its applicability. The article also examines recent developments in the Ninth Circuit's reading of the regulation.

Introduction

Noncitizens may be granted U.S. permanent resident status in one of two ways: (1) by applying for and receiving an immigrant visa, and then applying for and being granted admission to the United States as a lawful permanent resident (LPR), or (2) by invoking the privilege of applying within the United States through the more streamlined adjustment of status process. Unsurprisingly, for reasons of convenience, avoidance of international travel, the right to legal representation in the adjustment process, and a desire to avoid a largely unreviewable immigrant visa refusal by a U.S. consular officer, most noncitizens—if eligible—opt for the adjustment of status process, rather than pursue an immigrant visa abroad. ¹

The path from temporary nonimmigrant status to lawful permanent residence is fraught with challenges, delays, and uncertainty, and is arguably "nearly impossible." ² The universe of potential impediments to the approval of an application to adjust status are legion. While many adjustment barriers center around a constellation of nonimmigrant status breaches, "violations of status," or failures to "maintain status," adjustment can also be refused on grounds that a noncitizen is inadmissible to the United States under a host of specific statutory provisions. ³

These adjustment bars lurk in the dense thicket of Immigration and Nationality Act (INA) § 245(c), with its eight grounds and multiple subgrounds warranting an immigration officer's refusal of an adjustment application. But at

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least for failures to maintain nonimmigrant status, subsection (c)(2) contains a "parenthetical exculpatory clause" ⁴ that excuses violations where the applicant was not at fault or "for technical reasons." ⁵ Hence, by statute, magnanimity for no-fault or technical status breaches is enshrined, and applications for adjustment of status are nonetheless approvable.

In a floundering rulemaking effort, however, as this article will show, the two forgiveness clauses were starkly reduced in scope by the legacy immigration-benefits agency, the Immigration and Naturalization Service (INS), such that they bear scant resemblance to the generous congressional text. ⁶ Because the regulation has proven vulnerable to legal challenges, the successor to INS, U.S. Citizenship and Immigration Services (USCIS), should update its Policy Manual to mitigate the more debarring aspects of its application.

The Burgeoning of Stateside Green Cards

In fiscal year 2022, USCIS adjusted the status of more than 550,000 noncitizens to lawful permanent residence, approximately 221,000 of whom were employment-based applicants. ⁷ By comparison, the Department of State consular processed 464,143 immigrant visas, 48,878 of which were in employment-based categories. ⁸

Given these figures, it is difficult to imagine a cosmos without adjustment of status, a relatively recent phenomenon. Prior to the INA's enactment in 1952, there existed only a "pre-examination" process by which a noncitizen in the United States could obtain permanent residence; that procedure, somewhat analogous to the current provisional waiver process, ⁹ entailed "an official determination" of eligibility in the United States, followed by a trip to Canada or another country for a prearranged visa appointment and a "prompt return and admission to the United States as a permanent resident." ¹⁰

The 1952 INA marked the first appearance of adjustment of status as a means of obtaining residence in the United States for a noncitizen "who was lawfully admitted to the United States as a bona fide nonimmigrant and who is continuing to maintain that status." ¹¹ As earlier stated, it is often not inadmissibility that presents a barrier to an adjustment applicant (perhaps because clearly inadmissible noncitizens are reluctant to apply); rather, it is ineligibility for adjustment with its insistence on a largely unsullied applicant. What is the provenance of this clean-hands requirement for adjustment applicants?

"Double, Double Toil and Trouble": Enter the § 245(c) Bars

Congress first enacted the INA § 245(c)(2) adjustment bars in the Immigration and Nationality Act Amendments of 1976. ¹² At the time, only three

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categories of noncitizens were barred: (1) crewmen; (2) those, other than immediate relatives of U.S. citizens, who "hereafter continue[ ] in or accept[ ] unauthorized employment prior to filing an application for adjustment of status"; or (3) any noncitizen admitted in transit without a visa. Unauthorized employment was therefore one of the original sins baked into the adjustment proscriptions.

A decade later, in the Immigration Reform and Control Act of 1986 (IRCA), Congress amended the 245(c)(2) bars, this time adding to the end of the "hereafter" clause, "or who is not in legal 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 for technical reasons) to maintain continuously a legal status since entry into the United States." ¹³ Importantly, though, the statute then read as a sort of unitary conception—"other than through no fault of his own for technical reasons"—thereby binding "no fault" to the prepositional phrase "for technical reasons." ¹⁴

Thus, mercy could be dispensed for status-maintenance breaches only if they occurred through no fault of the noncitizen for nonsubstantive (technical) reasons. Based on the text of the statute, demonstrating an absence of fault on the part of the violator was not a sufficient basis for clemency; the violation also had to be a technical one. In the Immigration Technical Corrections Act of 1988, Congress added the conjunction "or" after the phrase "no fault of his own." ¹⁵

And to this day, the "parenthetical exculpatory clause" ¹⁶ remains bifurcated into the disjunctive, and reads as follows: "(other than through no fault of his own or for technical reasons)." ¹⁷ The separation of the clause into two distinct provisions invited a broader interpretation, since a reprieve was now available for both faultless breaches as well as nonsubstantive violations. Then, as now, the statute did not define what was precisely meant by "no fault" or "for technical reasons." That task would be left to implementing regulations.

"O, That Way Madness Lies": INS's Interpretation of the Exculpatory Clause Is the Result of Defective Rulemaking

On March 3, 1987, the INS published an interim rule with request for comments, implementing the IRCA-amended § 245(c), defining, inter alia, the original phrase "other than through no fault of his own for technical reasons." ¹⁸ The interim rule, of course, preceded the phrase's bifurcation in the Immigration Technical Corrections Act of 1988; but setting aside this outsized distinction, the language of subsections (d)(2)(i)-(iii), then designated as (c)(i)-(iii), remains largely unchanged in over three decades. More importantly, despite the generous language of the statutory provision—to say nothing of the later addition of the conjunction "or"—the regulation instinctively sought to narrowly cabin construction of the phrase.

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The interim regulation opened with the admonition that the statutory parenthetical "shall be limited to" three instances: inaction by an individual or organization designated by regulation to act on behalf of the individual, technical violation "resulting from inaction of the Service [INS]," and technical violation "caused by physical inability of the applicant to request an extension of nonimmigrant stay." ¹⁹ But there is no compelling reason of law or language why the statute must be strictly limited to these narrowly crafted exceptions.

This narrowness question was raised but largely left unanswered in Peters v. Barr, ²⁰ a case addressing ineligibility for adjustment due to a lawyer's failure to properly file an H-1B extension. "Peters contends," the Ninth Circuit stated, "that the regulation is an impermissibly narrow interpretation of the statute." ²¹ The court did not reach this question, finding only that the regulation was 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'" and finding "it unnecessary to decide whether the regulation is invalid . . . in its entirety." ²²

The interim rule opened by stating that IRCA amended the statute "to prohibit adjustment to lawful permanent resident status within the United States by two additional groups of individuals: those who have failed to maintain legal immigration status on the date their adjustment of status applications are filed, and those who have failed (other than through no fault of their own for technical reasons) to maintain continuously a legal status since entry into the United States." ²³ The interim rule noted further that INS was "guided by Congressional intent as stated in the Report of the Committee on the Judiciary of the United States on S. 1200," the original Senate bill that became...