                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 HAIM ATTIAS,                                      No. 18-56629
                      Plaintiff-Appellant,
                                                     D.C. No.
                     v.                           2:18-cv-02334-
                                                     DMG-JC
 KRISTINE R. CRANDALL, Acting
 Center Director of Nebraska Service
 Center, U.S. Citizenship and                        OPINION
 Immigration Services,
                  Defendant-Appellee.


        Appeal from the United States District Court
           for the Central District of California
          Dolly M. Gee, District Judge, Presiding

          Argued and Submitted February 14, 2020
                   Pasadena, California

                       Filed July 30, 2020

    Before: Jay S. Bybee and Daniel P. Collins, Circuit
    Judges, and Barry Ted Moskowitz,* District Judge.

                    Opinion by Judge Bybee


     *
       The Honorable Barry Ted Moskowitz, United States District Judge
for the Southern District of California, sitting by designation.
2                      ATTIAS V. CRANDALL

                            SUMMARY**


                            Immigration

    Affirming the district court’s grant of summary judgment
to the United States Citizenship and Immigration Services
(USCIS), the panel held that Haim Attias was ineligible for
adjustment of status to lawful-permanent-resident status
because he failed to establish that his lapse in lawful
immigration status was “through no fault of his own or for
technical reasons.”

    Under 8 U.S.C. § 1255(c)(2), an alien is barred from
adjusting status if he “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.” As
relevant here, an implementing regulation, 8 C.F.R.
§ 245.1(d)(2)(ii), interprets the phrase, “other than through no
fault of his own or for technical reasons,” to mean a
“technical violation resulting from inaction of [USCIS].”
Also as relevant here, only a lapse in status exceeding 180
days will preclude adjustment.

    Attias was granted a B-1 employment visa, and the day
before the visa expired, he applied for an extension of the
visa. More than a year later, USCIS denied the extension.
Attias had also filed an application for adjustment of status
based on his employer’s petition for an immigrant visa on his
behalf. After Attias’s visa extension was denied, USCIS
denied the adjustment application on the ground that he had

    **
       This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                    ATTIAS V. CRANDALL                        3

failed to maintain valid legal status for a period of over 180
days.

    The district court agreed with USCIS, relying on USCIS’s
Policy Manual, which interprets 8 C.F.R. § 245.1(d)(2)(ii) to
mean that if an application for a visa extension is ultimately
denied, an alien’s legal status lapses on the visa’s expiration
date, and no “technical violation” resulting from USCIS
inaction has occurred.

    The panel considered whether 8 C.F.R. § 245.1(d)(2)(ii)
is “genuinely ambiguous” such that the issue of deference
must be considered. Examining the language of the
regulation, the panel concluded that a “technical violation”
occurs only if the violation is a consequence of USCIS’s
inaction on a pending application; if the violation is caused by
anything within the alien’s control, such as substantive
ineligibility for an extension of lawful status, there is no
“technical violation.” Addressing the scenario where, as
here, an alien claims that a lapse in status was caused by
USCIS’s inaction on an application to extend lawful status,
the panel thus concluded that a “technical violation” occurs
only if the alien’s application to maintain lawful status is
ultimately granted.

    Because the panel concluded that this is the only way the
regulation can be read, it concluded that the text is not
“genuinely ambiguous,” and thus, the panel concluded that it
need not grant Auer deference to USCIS’s interpretation of
the regulation. However, the panel noted that it would hold
USCIS’s interpretation to be reasonable if it were to reach the
issue of deference.
4                   ATTIAS V. CRANDALL

    With respect to Attias, the panel concluded that his
unlawful status resulted from his failure to demonstrate
entitlement to an extension of his B-1 status, meaning that the
lapse was not excused as having occurred “through no fault
of his own or for technical reasons.” Moreover, because the
lapse exceeded 180 days, the panel concluded that Attias was
ineligible of adjustment of status.


                         COUNSEL

Jonathan R. Sturman (argued) and David M. Sturman, Law
Office of David M. Sturman APC, Encino, California, for
Plaintiff-Appellant.

Elizabeth D. Kurlan (argued) and Daniel P. Chung, Trial
Attorneys; Samuel P. Go, Senior Litigation Counsel; Glenn
M. Girdharry, Assistant Director; William C. Peachey,
Director; Joseph H. Hunt, Assistant Attorney General; Office
of Immigration Litigation, Civil Division, United States
Department of Justice, Washington, D.C.; for Defendant-
Appellee.


                         OPINION

BYBEE, Circuit Judge:

     The United States Citizenship and Immigration Services
(USCIS) denied Appellant Haim Attias’s application for
lawful-permanent-resident status. USCIS found that Attias
had failed to continuously maintain lawful status prior to the
filing of his application, rendering him ineligible for an
adjustment in status. See 8 U.S.C. § 1255(c). Attias filed
                    ATTIAS V. CRANDALL                         5

suit, claiming that his lapse in lawful status is excused
because the lapse occurred “through no fault of his own or for
technical reasons.” Id. Thus, Attias contends that USCIS’s
decision should be “set aside” under the Administrative
Procedure Act (APA) because it is “not in accordance with
law.” 5 U.S.C. § 706(2). The district court disagreed and
granted summary judgment to USCIS. We affirm.

        I. BACKGROUND AND PROCEEDINGS

A. Statute, Regulations, and USCIS Guidance

    After being lawfully “admitted or paroled into the United
States,” an alien’s status “may be adjusted” to lawful
permanent resident if certain conditions are met. 8 U.S.C.
§ 1255(a). But an alien is categorically prohibited from
obtaining an adjustment of status if the alien falls into one of
eight categories enumerated in 8 U.S.C. § 1255(c). The
relevant category for our purposes is the second one. Under
that provision, an alien is barred from adjusting status if the
alien “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.” Id. § 1255(c)(2). In other
words, an alien is ineligible for lawful-permanent-resident
status if the alien’s lawful status has lapsed at any point since
entering the country, unless the alien demonstrates the lapse
occurred “through no fault of his own or for technical
reasons.” Id.

    The statute provides no further definition of the phrases
“lawful status” or “through no fault of his own or for
technical reasons.” See id. But an implementing regulation
does. As relevant here, the regulation defines “[l]awful
immigration status” as “[a]n alien admitted to the United
6                      ATTIAS V. CRANDALL

States in nonimmigrant status . . . whose initial period of
admission has not expired or whose nonimmigrant status has
been extended.” 8 C.F.R. § 245.1(d)(1)(ii). The regulation
also interprets “[t]he parenthetical phrase other than through
no fault of his or her own or for technical reasons” to mean
“[a] technical violation resulting from inaction of [USCIS]
(as for example, where an applicant establishes that he or she
properly filed a timely request to maintain status and [USCIS]
has not yet acted on that request).” Id. § 245.1(d)(2)(ii).1
Thus, if an alien’s lapse in lawful status “result[s] from
inaction of” USCIS, the lapse is excused and will not render
the alien ineligible for adjustment of status under § 1255(c).
Id.

    The final relevant statutory provision is 8 U.S.C.
§ 1255(k). That provision creates an exception to § 1255(c)’s
categorical bar on adjusting status even when an alien’s lapse
in lawful status is the alien’s fault. Under § 1255(k), if an
alien is eligible for certain employment-related visas, a lapse
in lawful status will not preclude the alien from obtaining an
adjustment of status so long as the lapse did not exceed an
“aggregate period” of 180 days. Id. § 1255(k).2 Put
differently, § 1255(k) creates a blanket 180-day “grace
period” for particular aliens. See Peters v. Barr, 954 F.3d
1238, 1240 (9th Cir. 2020). These individuals are not
prohibited from adjusting status because of a lapse in lawful


    1
      The regulation describes three other situations that satisfy
§ 1255(c)’s parenthetical phrase, none of which is relevant here. See
8 C.F.R. § 245.1(d)(2)(i), (iii)–(iv).
    2
      Section 1255(k) contains several other conditions an alien must meet
to take advantage of the 180-day grace period, but those conditions are not
at issue.
                       ATTIAS V. CRANDALL                               7

status unless the lapse exceeded 180 days, at which point
§ 1255(c)’s prohibition would apply.

     Two documents created by USCIS explain the agency’s
interpretation of these statutory and regulatory provisions
when adjudicating an alien’s application to adjust status. The
first document is a memorandum issued in 2008 by Donald
Neufeld revising USCIS’s Adjudicator’s Field Manual,
Chapter 23.5(d). Memorandum from Donald Neufeld, Acting
Assoc. Dir., Domestic Operations, United States Citizenship
and Immigration Services (July 14, 2008) [hereinafter
Neufeld Memo]. The Neufeld Memo primarily focused on
the interaction between § 1255(k) and § 1255(c). See id. at 1.

    As relevant here, the Neufeld Memo explored the concept
of “lawful immigration status” and the effect a pending
application for an extension of or adjustment in status has on
an alien’s legal standing. Consistent with the regulatory
definition of “lawful immigration status,” the Neufeld Memo
notes that “[e]xpiration, revocation, or violation of status puts
a nonimmigrant out of status, and the alien remains out of
status until some adjudication restores status or the alien
departs the United States.” Id. at 5. Thus, merely filing an
application to extend lawful status does not grant the alien
lawful status: “The period during which an alien has a
pending [extension of stay], [change of status], or adjustment
of status application does not constitute, in and of itself, a
period in which the alien is in a lawful ‘status.’” Id. at 6.3 If,


    3
       By way of example, the Neufeld Memo states, “if an alien applied
for adjustment of status three days prior to the expiration of his or her
nonimmigrant status and the adjustment of status application was
eventually denied, the alien will not be considered to be in lawful status
after the expiration of the nonimmigrant status.” Neufeld Memo at 5.
8                   ATTIAS V. CRANDALL

however, the application is “ultimately approved,” USCIS
will treat the alien as if “the alien was in a lawful
nonimmigrant status” during the application’s pendency. Id.
Additionally, the Neufeld Memo took the position that where
the unlawful status resulted from a “‘technical violation’ or
through no fault of the applicant, . . . such period does not
count against the 180-day period” allowed by § 1255(k). Id.

    The second document promulgated by USCIS is the
agency’s Policy Manual. In Volume Seven, Part B, Chapter
Four of the Policy Manual, USCIS provides guidance for
applying 8 C.F.R. § 245.1(d)(2). Recall that this regulation
interprets § 1255(c)’s exculpatory clause—“through no fault
[of the alien] or for technical reasons”—to include “[a]
technical violation resulting from inaction of [USCIS] (as for
example, where an applicant establishes that he or she
properly filed a timely request to maintain status and [USCIS]
has not yet acted on that request).” 8 C.F.R. § 245.1(d)(2)(ii).
According to the Policy Manual, an alien may take advantage
of this regulatory provision only if, prior to the expiration of
the alien’s lawful status, the alien “filed an application to
extend or change nonimmigrant status that was meritorious in
fact, not frivolous or fraudulent, or otherwise designed to
delay removal or departure from the United States.”
Mirroring the analysis set forth in the Neufeld Memo, the
Policy Manual notes that if the application is ultimately
approved, “the start date of the extended status is retroactive
to the expiration date of the initial or previously extended
period of status.” But if the application is denied, the alien’s
legal status lapsed on the expiration date, and “[a] technical
violation resulting from inaction of [USCIS]” has not
occurred. See 8 C.F.R. § 245.1(d)(2)(ii).
                      ATTIAS V. CRANDALL                             9

    To illustrate this point, the Policy Manual provides the
following example. An alien’s legal status will expire on
June 30, 2009. Prior to that date, on June 1, the alien files an
application to extend his legal status for six months. USCIS
does not act on that application before June 30, so the alien’s
lawful status expires. On August 1, 2009, the alien then files
an application to adjust status. The Policy Manual explains
that if USCIS eventually grants the June 1 application to
extend status, “USCIS considers the [alien] to have
continuously maintained lawful status for purposes of
adjusting status.” In other words, the lapse in lawful status is
forgiven as a “technical violation resulting from inaction of
USCIS.” On the other hand, “if USCIS denied the extension
application, the [alien] would have fallen out of status as of
June 30 and would be barred from adjusting status, unless an
exemption applies.” Thus, according to USCIS’s Policy
Manual, whether an alien who filed a timely application to
extend status may take advantage of 8 C.F.R.
§ 245.1(d)(2)(ii) depends on USCIS’s final resolution of the
extension application.

B. Facts and Proceedings

    With the legal framework and agency guidance in mind,
we now turn to the facts of this case. Attias, a citizen of
Israel, was admitted to the United States on a B-2
nonimmigrant visa in 2015. His B-2 visa was valid until
November 2, 2015. In September 2015, Attias filed an
application to change his B-2 visa to a B-1 visa.4 USCIS
approved Attias’s application, changing Attias’s status to a



     4
       A B-1 visa is for business purposes. A B-2 visa is generally for
tourism. See 8 U.S.C. § 1101(a)(15)(B).
10                 ATTIAS V. CRANDALL

B-1 nonimmigrant visa. Attias’s B-1 visa was valid from
February 29, 2016 to April 2, 2016.

    On April 1, 2016, the day before his B-1 visa expired,
Attias filed a Form I-539 Application to Extend/Change
Nonimmigrant Status (Form I-539) requesting an extension
of his B-1 visa until October 5, 2016. USCIS did not
immediately act on this request, so Attias’s B-1 visa expired
the next day. Without the visa, Attias’s continued presence
in the United States was unlawful.

    USCIS first responded to Attias’s Form I-539 on July 19,
2016, when it requested that Attias submit additional
evidence supporting his continued eligibility for a B-1 visa.
Attias responded to the request for evidence on August 16,
2016. Nearly a year later, on July 25, 2017, USCIS denied
Attias’s application to extend his B-1 visa, explaining that
Attias had failed to demonstrate that his presence in the
United States would be temporary, making him ineligible for
the visa.

    Attias did not challenge that decision. Instead, even
before his request to extend his B-1 visa was denied, Attias
began attempting to obtain legal status through other means.
On January 26, 2017, his employer filed a Form I-140
Immigrant Petition for Alien Worker, which was granted on
November 29, 2017. In conjunction with that filing, Attias
filed a Form I-485 Application for Adjustment of Status
(Form I-485), requesting he be given lawful-permanent-
resident status.

   USCIS denied the Form I-485 on February 9, 2018.
Relying on § 1255(c), § 1255(k), and 8 C.F.R. § 245.1,
USCIS explained that because Attias’s Form I-539
                         ATTIAS V. CRANDALL                                11

application to extend his B-1 visa was denied, Attias’s
“nonimmigrant status expired on April 2, 2016.”
Accordingly, the agency found that Attias “failed to maintain
a valid nonimmigrant status from April 3, 2016 to January 25,
2017 which constitutes 9 months and 23 days (i.e. 298 days).”
Because this lapse in legal status exceeded 180 days, USCIS
determined that § 1255(k) did not apply. Thus, USCIS
concluded that Attias was “restricted from adjusting [status]
as described under [8 U.S.C. § 1255](c)(2), (7) or (8),” so
Attias’s “application may not be approved.”5

    Attias timely sought reconsideration of USCIS’s decision.
He claimed that his lapse in lawful status was excused under
§ 1255(c) because the lapse occurred “through no fault of his
own or for technical reasons.” Relying on 8 C.F.R.
§ 245.1(d)(2)(ii), Attias argued that USCIS’s delay in acting
on his timely filed Form I-539 caused a technical violation,
excusing his unlawful status.

    USCIS denied the motion to reconsider. Citing the
Neufeld Memo, USCIS explained that an individual falls “out
of status” upon “[e]xpiration, revocation, or violation of
status,” and the pendency of an “application does not
constitute, in and of itself, a period in which the alien is in a
lawful ‘status.’” When Attias’s B-2 visa expired on April 2,
2016, Attias was no longer in lawful status. Even though
USCIS’s inaction on Attias’s Form I-539 “appears to have

    5
       Because his employer’s Form I-140 was granted, USCIS considered
Attias to be in a lawful status beginning on January 26, 2017, the day that
I-140 application was filed. Attias was therefore in lawful status on the
day he filed his Form I-485 application to adjust his status. Cf. 8 U.S.C.
§ 1255(c)(2) (noting that it is generally an independent bar to adjustment
of status if the alien “is in unlawful immigration status on the date of filing
the application for adjustment.”).
12                     ATTIAS V. CRANDALL

exceeded normal processing times,” USCIS ultimately denied
the Form I-539. And because the Form I-539 was denied,
“the period during which [that] application was pending does
not constitute a lawful status.” Thus, Attias “failed to
maintain a valid nonimmigrant status” for 298 days,
rendering him ineligible for an adjustment of status to lawful
permanent resident.

    Following USCIS’s denial of his motion to reconsider,
Attias initiated this lawsuit. He requested that USCIS’s
judgment be set aside under the APA. Attias contended that
USCIS had misread the statute and regulation, arguing that
USCIS’s delay in adjudicating his Form I-539 caused a
“technical violation” under 8 C.F.R. § 245.1(d)(2)(ii) that
excused his failure to maintain lawful status.

    The district court rejected Attias’s argument and granted
summary judgment to USCIS. In its summary-judgment
order, the district court sua sponte took judicial notice of
USCIS’s Policy Manual. The court found that the Policy
Manual’s interpretation of 8 C.F.R. § 245.1(d)(2)(ii) was “not
plainly erroneous or inconsistent with” the regulation, so that
interpretation must control.           And under USCIS’s
interpretation, Attias’s lapse in lawful status was not excused
because USCIS ultimately denied his Form I-539.
Accordingly, USCIS’s denial of Attias’s I-485 was not
contrary to law under the APA.

    Following entry of the summary-judgment order, Attias
filed a motion for reconsideration. The district court denied
the motion, and this appeal followed.6

     6
       The district court had jurisdiction under 28 U.S.C. § 1331. We have
jurisdiction pursuant to 28 U.S.C. § 1291.
                      ATTIAS V. CRANDALL                           13

                         II. ANALYSIS

    Under the APA, a “reviewing court shall . . . hold
unlawful and set aside agency action, findings, and
conclusions found to be . . . not in accordance with law.”
5 U.S.C. § 706. Attias argues that USCIS’s denial of his
Form I-539 on the grounds that he failed to continuously
maintain lawful status is contrary to § 1255(c) and 8 C.F.R.
§ 245.1(d)(2)(ii). In his view, the facts of this case fall
squarely within the text of the regulation—he “filed a timely
request to maintain status” and USCIS did not “act[] on that
request” between April 3, 2016 and January 25, 2017, the
period of his lapse in lawful status. See 8 C.F.R.
§ 245.1(d)(2)(ii). As a result, his lapse in lawful status was
the result of a “technical violation” and should be excused.

    USCIS takes a different view. It contends that its
interpretation of 8 C.F.R. § 245.1(d)(2)(ii) set forth in the
Policy Manual is entitled to deference. And under that
interpretation, no “technical violation” occurred here because
Attias’s Form I-539 was ultimately denied. Thus, he fell out
of lawful status when his B-1 visa expired on April 3, 2016,
and that lapse in lawful status is not excused, precluding him
from obtaining an adjustment of status to lawful permanent
resident.

   When faced with an agency’s interpretation of its own
regulation, we must first determine whether the regulation is


    We review the district court’s grant of summary judgment to USCIS
de novo. Brunozzi v. Cable Commc’ns, Inc., 851 F.3d 990, 995 (9th Cir.
2017). We may affirm the district court’s judgment “on any ground
supported by the record.” Lima v. U.S. Dep’t of Educ., 947 F.3d 1122,
1125 (9th Cir. 2020).
14                  ATTIAS V. CRANDALL

“genuinely ambiguous.” Kisor v. Wilkie, 139 S. Ct. 2400,
2414 (2019). To determine if a regulation’s text is genuinely
ambiguous, we must “resort[] to all the standard tools of
interpretation,” including analysis of the regulation’s “text,
structure, history, and purpose.” Id. at 2414–15. If the
regulation’s text is unambiguous, we give no deference to the
agency’s interpretation: “[t]he regulation then just means
what it means.” Kisor, 139 S. Ct. at 2415. But if the
regulation is ambiguous, we will defer to the agency’s
interpretation so long as that interpretation is “reasonable,” is
based on the agency’s “substantive expertise,” “reflect[s] [the
agency’s] fair and considered judgment,” and represents “the
agency’s authoritative or official position.” Id. at 2415–17
(internal quotation marks omitted).

    As we previously noted, the regulatory provision
primarily at issue here is 8 C.F.R. § 245.1(d)(2)(ii), which
interprets § 1255(c)’s parenthetical exculpatory clause to
include “[a] technical violation resulting from inaction of
[USCIS].” The key textual phrase for our purposes is
“resulting from.” The phrase seems plain enough, but our
instincts are confirmed in various dictionaries, which define
“result” as “to proceed or arise as a consequence, effect, or
conclusion.” Result, Merriam-Webster.com (last visited June
23, 2020); see also Result, Black’s Law Dictionary (11th ed.
2019) (defining “result” as “[t]o be a physical, logical, or
legal consequence; to proceed as an outcome or conclusion”);
Result, Oxford English Dictionary Online (last visited June
23, 2020) (defining “result” as “[t]o arise as a consequence,
effect, or outcome of some action, process, or design”).
Consistent with these definitions, a “technical violation”
occurs under the regulation only if the violation is a
consequence or effect of USCIS’s inaction on a pending
application. In other words, the alien’s lapse in lawful status
                    ATTIAS V. CRANDALL                        15

must be caused by bureaucratic delay. If the lapse is caused
by anything within the alien’s control, including a failure to
anticipate his deadlines, this subsection of the regulation does
not apply. See Xiao Lu Ma v. Sessions, 907 F.3d 1191, 1199
(9th Cir. 2018) (explaining how the alien might have avoided
“inflexible requirements [that] inevitably produce painful
outcomes”).

    This reading of the phrase “resulting from” informs our
interpretation of the example set forth in the regulation’s text.
Recall that the regulation articulates the following example of
a technical violation: “where an applicant establishes that he
or she properly filed a timely request to maintain status and
[USCIS] has not yet acted on that request.” 8 C.F.R.
§ 245.1(d)(2)(ii). If read in isolation, this example appears to
cast a broad net—so long as an alien files a timely application
to maintain status, any lapse in legal status is excused while
that application remains pending, even if the lapse is not
caused by USCIS’s inaction. But such a broad interpretation
is inconsistent with the text of the regulation as a whole.
Indeed, this interpretation would nullify the requirement that
the lapse “result[] from” USCIS’s inaction. See id.

    Simple hypotheticals will demonstrate the point. Suppose
that an alien files a timely, meritorious application to extend
status. If USCIS acts with instantaneous dispatch, the
application will be granted and there will be no lapse in the
alien’s status. If, however, USCIS does not act with such
dispatch, the alien will be temporarily out of status until the
application is granted. USCIS considers that gap in status to
be “[a] technical violation resulting from inaction of
[USCIS].” 8 C.F.R. § 245.1(d)(2)(ii). The technical violation
is excused under § 1255(c). Let’s change the hypothetical.
Assume an alien files a clearly frivolous application to extend
16                  ATTIAS V. CRANDALL

lawful status just before the alien’s lawful status expires.
USCIS does not act on that application for several months, so
the alien’s lawful status lapses. Because the application is
frivolous, USCIS will eventually deny it. In this scenario, the
alien’s lapse in lawful status did not result from USCIS’s
inaction, but instead resulted from the alien’s substantive
ineligibility for an extension of lawful status. That lapse is
not a “technical violation” excused under § 1255(c). A
“technical violation” thus occurs only if the alien’s
application to maintain lawful status is ultimately granted.
See 8 C.F.R. § 245.1(d)(1)(ii) (stating that an alien is in
lawful immigration status only if the alien’s “admission has
not expired or whose nonimmigrant status has been extended”
(emphasis added)).

    Attias raises two objections to this reading. First, Attias
argues that § 1255(c)’s exculpatory clause “is equitable in
nature,” so it should be interpreted broadly. Generally, an
ameliorative “rule will be interpreted and applied in an
ameliorative fashion,” especially in the immigration context.
Hernandez v. Ashcroft, 345 F.3d 824, 840 (9th Cir. 2003).
But this canon of construction “do[es] not override the
principle that the ordinary meaning of words . . . controls.”
Durand v. U.S. Dep’t of Labor, 662 F.3d 1106, 1109 (9th Cir.
2011).

    Second, Attias claims that this reading renders 8 C.F.R.
§ 245.1(d)(2)(ii) entirely superfluous, and so it cannot be
correct. See Marx v. Gen. Rev. Corp., 568 U.S. 371, 385–86
(2013). Attias points out that § 1255(c) and 8 C.F.R.
§ 245.1(d)(2)(ii) only apply when an alien “fail[s] . . . to
maintain continuously a lawful status.” 8 U.S.C. § 1255(c).
Thus, in Attias’s view, if USCIS considers an alien to have
never fallen out of lawful status when it ultimately grants an
                        ATTIAS V. CRANDALL                              17

application, § 1255(c) and 8 C.F.R. § 245.1(d)(2)(ii) would
never apply.

     We disagree. When an alien’s lapse in lawful status
occurs “through no fault of his own or for technical reasons,”
the lapse is excused and USCIS will treat the alien as though
he had continuously maintained lawful status. 8 U.S.C.
§ 1255(c); 8 C.F.R. § 245.1(b)(6). It makes no difference
whether we would say that USCIS has engaged in a legal
fiction or that USCIS has given retroactive effect to the
application for an extension. If an alien’s lapse qualifies for
§ 1255(c)’s exculpatory clause, the alien will be considered
to have never been in unlawful status. The only reason
USCIS can consider an alien “to have continuously
maintained lawful status” when it ultimately grants an
application to extend lawful status is because it is
commanded by § 1255(c) to ignore a lapse in status that
occurred for “technical reasons.”

    Because we believe this is the only way the regulation can
be read, we conclude that the text is not “genuinely
ambiguous.” We thus need not grant Auer deference to
USCIS’s interpretation of the regulation. See Kisor, 139 S.
Ct. at 2414.7 And given our reading of the regulation, this
case is easily resolved. Attias’s lapse in lawful status was not
caused by USCIS’s inaction. To the contrary, Attias’s lapse
resulted from his substantive ineligibility for an extension of

    7
      We note that USCIS’s Neufeld Memo and Policy Manual read the
regulation the same way we have. Even were we to reach the question of
Auer deference, a fortiori, we would hold USCIS’s interpretation to be
reasonable. See Bassiri v. Xerox Corp., 463 F.3d 927, 931 (9th Cir. 2006)
(“[W]e defer to [an] agency’s interpretation of its regulation unless an
alternative reading is compelled by the regulation’s plain language . . . .”
(internal quotation marks omitted)).
18                 ATTIAS V. CRANDALL

his B-1 visa. By ultimately denying Attias’s Form I-539,
USCIS found that Attias failed to demonstrate his entitlement
to an extension of B-1 status. That failure, not USCIS’s
attendant delay in adjudicating the Form I-539, resulted in
Attias being in unlawful status. Accordingly, Attias’s lapse
in lawful status did not occur “through no fault of his own or
for technical reasons,” so the lapse is unexcused. 8 U.S.C.
§ 1255(c); 8 C.F.R. § 245.1(d)(2)(ii). And because the
duration of his lapse in lawful status exceeded 180 days,
Attias may not take advantage of the 180-day grace period in
§ 1255(k). Accordingly, he is ineligible for an adjustment of
status to lawful-permanent-resident status. See 8 U.S.C.
§ 1255(c); see also Xiao Lu Ma, 907 F.3d at 1199. USCIS’s
denial of Attias’s Form I-485 was not contrary to law under
the APA, and the district court’s grant of summary judgment
to USCIS was proper.

                    III. CONCLUSION

    We conclude Attias “failed . . . to maintain continuously
a lawful status since entry into the United States.” 8 U.S.C.
§ 1255(c). He is thus statutorily ineligible for an adjustment
of status to lawful permanent resident. The judgment of the
district court is

     AFFIRMED.
