Electromedical Tech. Inc. v. Chad Wolf ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 12 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELECTROMEDICAL TECHNOLOGIES No. 19-15966
INCORPORATED, a Delaware corporation;
et al., D.C. No. 2:18-cv-00508-GMS
Plaintiffs-Appellants,
MEMORANDUM**
v.
CHAD WOLF, in his capacity as the Acting
Secretary of the United States Department of
Homeland Security; et al.,*
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, Chief District Judge, Presiding
Argued and Submitted May 7, 2020
Portland, Oregon
Before: WATFORD and HURWITZ, Circuit Judges, and BATTAGLIA,***
District Judge.
*
Chad Wolf is the current Acting Secretary of Homeland Security and
was automatically substituted as a party. Fed. R. App. P. 43(c)(2).
**
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
***
The Honorable Anthony J. Battaglia, United States District Judge for
the Southern District of California, sitting by designation.
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Peter Gajic and his employer, ElectroMedical Technologies, Inc., appeal
from the district court’s order rejecting their challenges to the denial of
ElectroMedical Technologies’ untimely filed H-1B visa extension petition and
Gajic’s application for adjustment of status. We affirm.
1. United States Citizenship and Immigration Services (USCIS) did not
arbitrarily deny the visa extension petition, which was filed over seven years after
Gajic fell out of status. Plaintiffs argued before the agency that the petition’s
lateness should have been excused due to ineffective assistance by their prior
attorney, who failed to file a visa extension petition on Gajic’s behalf. See 8
C.F.R. § 214.1(c)(4)(i). But after prior counsel stopped representing Plaintiffs,
they waited roughly two years before filing a visa extension petition. Plaintiffs did
not argue before the agency that their lawyers during this time period also acted
negligently. Thus, even if the portion of the filing delay attributable to attorney
negligence were excusable, there still would have been two years of unexcused
delay. USCIS did not abuse its discretion in rejecting the petition on the ground
that prior counsel’s negligence was incommensurate with the delay in filing.
2. Because USCIS did not err in rejecting Gajic’s visa extension petition, it
necessarily did not err in rejecting his application for adjustment of status. Gajic
was ineligible for adjustment of status because he had been out of lawful status and
was without employment authorization for far longer than 180 days when he
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submitted his application. See 8 U.S.C. § 1255(c)(2), (c)(7), (c)(8), (k).
AFFIRMED.