Prasad v. Holder, No. 14-1034 (4th Cir. 2015)
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Petitioner, a native and citizen of India, petitioned for review of the BIA's affirmance of the IJ's denial of petitioner's renewed application for adjustment of status and order of removal, as well as petitioner's motion to reopen and reconsider. Joining the BIA and the Ninth Circuit, the court held that the deadline in 8 U.S.C. 1255(i) operates as a statue of repose that is not subject to equitable tolling. Therefore, the failures of petitioner's original counsel to file a timely labor certification to equitably toll the deadline under section 1255(i) is not a question the court need to consider. Because petitioner did not meet the deadline and because the deadline is a statute of repose not subject to equitable tolling, petitioner is not eligible for relief and his motion to reopen was properly denied on that basis alone. Accordingly, the court denied the petition in part and dismissed in part.
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PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-1034 KAMLESHWAR PRASAD, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Argued: December 10, 2014 Decided: January 12, 2015 Before DUNCAN, AGEE, and HARRIS, Circuit Judges. Petition denied in part and dismissed in part by published opinion. Judge Harris wrote the opinion, in which Judge Duncan and Judge Agee joined. ARGUED: Mark A. Mancini, WASSERMAN, MANCINI & CHANG, Washington, D.C., for Petitioner. Walter Bocchini, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Stuart F. Delery, Assistant Attorney General, Linda S. Wernery, Assistant Director, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. PAMELA HARRIS, Circuit Judge: Petitioner Kamleshwar Prasad (“Prasad”), a native and citizen of India who is unlawfully present in the United States, seeks to adjust his status to that of lawful permanent resident. Though persons unlawfully present in this country generally are barred from becoming lawful permanent residents, Prasad relies on an exception: Section 245(i) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1255(i), provides that an alien who is unlawfully present in the United States may be eligible for adjustment of status if, inter alia, he is the beneficiary of a labor-certification application filed on or before April 30, 2001. Prasad concedes that his labor-certification application was filed more than two months after the statutory deadline. He argues, however, that it was his attorney who failed to file a timely application on his behalf, and that the deadline should be equitably tolled as a result. The Board of Immigration Appeals (“BIA” or “Board”) rejected that claim, holding that the § 1255(i) deadline operates as a statute of repose and thus is not subject to equitable tolling. We agree, and therefore deny the petition for review in part and dismiss in part. 2 I. A. Under the INA, an alien lawfully present in the United States is eligible for adjustment of status to lawful permanent resident if he or 8 U.S.C. § 1255(a). she meets certain statutory criteria. But an alien unlawfully present is excluded from eligibility for adjustment. 8 U.S.C. § 1255(c). In 1994, Congress created an exception to this statutory scheme, amending the INA to allow certain aliens to apply for adjustment of status notwithstanding their unlawful presence in the country. Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1995, Pub. L. No. Congress 103–317, intended § 506(b), that the 108 Stat. exception 1724, be 1765–66 temporary, (1994). and so included a specific sunset provision requiring such aliens to apply for adjustment before October 1, 1997. Id. at § 506(c), 108 Stat. at 1766; Suisa v. Holder, 609 F.3d 314, 315–16 (4th Cir. 2010) (detailing history of § 1255(i)); Lee v. U.S. Citizenship and Immigration Servs., 592 F.3d 612, 614–15 (4th Cir. 2010) (same). When the original sunset date expired in 1997, Congress enacted a grandfather clause that allowed aliens to seek adjustment of status if they were the beneficiaries of laborcertification applications filed on or before January 14, 1998. 3 Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1998, Pub. L. No. 105–119, § 111(a), 111 Stat. 2440, 2458 (1997). In 2000, Congress again extended the deadline, this time to April 30, 2001. LIFE Act Amendments of 2000, Pub. L. No. 106–554, § 1502(a)(1)(B), 114 Stat. 2763, 2763A–324 (2000). But that was the final extension; in 2001, Congress failed to act on a proposed bill to extend the deadline once again. Accordingly, himself of the See 147 Cong. Rec. 6418–19 (2001). at § the time 1255(i) that Prasad exception, it sought provided to avail that an unlawfully present alien may apply to the Attorney General for adjustment of status if he or she is the beneficiary of an application for a labor certification filed “on or before” April 30, 2001. 8 U.S.C. § 1255(i)(1)(B)(ii), (C). Even if an alien satisfies that requirement, adjustment of status is not assured; additional statutory criteria must be met, and the ultimate decision whether to grant adjustment of status is within the discretion of the Attorney General. See Suisa, 609 F.3d at 316; Lee, 592 F.3d at 615–16. B. Prasad was admitted to the United States on or about May 11, 2000. in the It is undisputed that Prasad was unlawfully present United States status under § 1255(c). and thus ineligible for adjustment of He therefore turned to the § 1255(i) 4 exception, and sought to obtain the requisite labor certification. In this he was to be assisted by attorney Earl S. David (“David”), retained by Prasad’s then-employer to file a laborcertification Prasad’s application, behalf. This as was well not a as a case visa in petition, which David on was required to calculate a variable due date for the application, based on the happening of some event. fixed and precisely Nevertheless, specified David by filed Instead, the due date was statute: Prasad’s April 30, 2001. labor-certification application on July 13, 2001, more than two months after the statutory deadline. 1 In 2007, assisted by different counsel, Prasad filed for adjustment of status. United States Citizenship and Immigration Services denied Prasad’s application on the ground that Prasad was not the beneficiary of a labor-certification filed on or before April 30, 2001. that followed, the Immigration 1 application In the removal proceedings Judge (“IJ”) denied Prasad’s It appears that David’s performance in this case was not an aberration. In 2004, for reasons unrelated to his representation of Prasad, David was suspended for fifteen months from the practice of law in New York and from practice before the BIA, the Immigration Courts, and the Department of Homeland Security. When Prasad subsequently filed a complaint against David, the New York State Bar informed Prasad that because David had been suspended from practice, the Bar no longer had jurisdiction to investigate him. 5 renewed application for adjustment of status and ordered his removal to India. A.R. 90. Prasad filed a motion to reopen and reconsider, raising the equitable-tolling argument at the heart of this case: that his original attorney’s ineffective assistance should serve as a basis for equitable tolling of the § 1255(i) deadline. The IJ denied Prasad’s motion, concluding that there was no basis under Fourth Circuit law for tolling of the April 30, 2001 deadline and rejecting Prasad’s additional claims. A.R. 47. On December 13, 2013, the BIA affirmed the IJ’s decision. A.R. 3–4. reconsider, In order the to Board prevail on explained, his motion Prasad to would reopen or have to demonstrate prima facie eligibility for the relief he sought – adjustment of status under § 1255(i)(1)(B)(ii). And that he could not do, the BIA concluded, because he had not filed a labor-certification application before April 30, 2001 and because, as the Ninth Circuit held in Balam-Chuc v. Mukasey, 547 F.3d 1044 (9th Cir. 2008), that deadline operates as a statute of repose that cannot be equitably tolled. The Board dismissed Prasad’s appeal for failure to show prima facie eligibility for relief and did not address any other claims. petitions this court for review of the BIA’s order. 6 Prasad now II. A. We review appropriate the BIA’s deference, legal in conclusions accordance de with novo and give principles administrative law, to its interpretation of the INA. of Kuusk v. Holder, 732 F.3d 302, 304–05 (4th Cir. 2013). We review the denial for of a discretion. 2009). motion to reopen and reconsider abuse of Mosere v. Mukasey, 552 F.3d 397, 400 (4th Cir. We reverse the denial of such a motion only if the BIA acted arbitrarily, irrationally, or contrary to law. Urbina v. Holder, 745 F.3d 736, 741 (4th Cir. 2014). B. Prasad’s main contention on appeal is that his attorney’s ineffective assistance certification in application § 1255(i)’s deadline. failing to justifies file a timely equitable labor- tolling of Like the BIA and the Ninth Circuit, we conclude that the deadline in § 1255(i) operates as a statute of repose that is not subject to equitable tolling. Whether the failures of Prasad’s original counsel otherwise might warrant equitable tolling is a question we need not reach. As repose the “puts Supreme an Court outer recently limit on the explained, right to a statute bring action,” after which no cause of action can accrue. v. Waldburger, 573 U.S. ———, 134 7 S. Ct. 2175, a of civil CTS Corp. 2182 (2014). Equivalent operates to as legislative a “cutoff,” a id. substantive policy at bar judgment 2183, to that a statute liability, no legal of repose reflecting right should recognized after a statutorily determined end point. a be See id.; First United Methodist Church of Hyattsville v. U.S. Gypsum Co., 882 F.2d 862, 866 (4th Cir. 1989), cert. denied, 493 U.S. 1070 (1990). statutes To avoid interference with those legislative judgments, of repose generally are treated as “absolute limit[s]” and are “not tolled for any reason.” time First United, 882 F.2d at 866; see CTS Corp., 134 S. Ct. at 2183; 4 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1056 (3d ed. 2002) (“[A] repose period is fixed and its expiration will not be delayed by estoppel or tolling.”). The premise of Prasad’s argument is that § 1255(i)’s deadline is not a statute of repose, but instead a statute of limitations to which equitable tolling does apply. Whereas a statute of repose puts an end date on substantive liability, a statute of limitations is a purely procedural defense, imposing a time limit, usually based on when a claim accrues, during which a action. plaintiff must bring suit on an existing cause of See CTS Corp., 134 S. Ct. at 2182; First United, 882 F.2d at 865-66; see also Webb v. United States, 66 F.3d 691, 700-01 (4th limitations Cir. is to 1995). require A chief plaintiffs 8 purpose to of pursue statutes their of claims promptly and with diligence. It follows, the Supreme See CTS Corp., 134 S. Ct. at 2183. Court has explained, that where a plaintiff has done just that but has been prevented by some extraordinary circumstance from bringing a timely action, equitable tolling of the deadline may be appropriate. Id. is equitable exactly tolling: deadline, the He but rationale made was every for Prasad’s effort prevented from to claim comply doing so to with by his That § 1255(i)’s attorney’s extraordinary deficiencies. We cannot agree with Prasad that the April 30, 2001 sunset date in § 1255(i) operates as a statute of limitations subject to equitable tolling. Like the Ninth Circuit, the only other federal circuit court to address the question, 2 we think that the April 30, 2001 deadline has all the hallmarks of a statute of repose, consistent with Congress’s intent to “close[] the class of individuals entitled to special treatment” under § 1255(i). Balam-Chuc, 547 F.3d at 1049. First and most important, § 1255(i) sets out a fixed and specific time-certain by which 2 applications must be filed – Prasad relies here, as he did before the IJ and BIA, on a Second Circuit case, Piranej v. Mukasey, 516 F.3d 137 (2d Cir. 2008), for the proposition that the deadline in § 1255(i) is a statute of limitations subject to equitable tolling. In Piranej, however, the Second Circuit expressly declined to reach that question. Id. at 145. 9 April 30, 2001 – rather than a variable deadline pegged to some other event. text of As the Ninth Circuit explained in analyzing the § 1255(i), “Perhaps the most distinguishing characteristic of a statute of repose is that it establishes an outer date for bringing an action instead of a variable period of time during which a plaintiff must assert her claim.” (internal quotation marks omitted). Statutes of Id. limitations typically are tied to the date on which a claim accrues, which means that the deadline may be different for each plaintiff. See CTS Corp., 134 S. Ct. at 2182. The defining feature of a statute of repose, on the other hand, is that it establishes the same deadline cutoff for date” everyone, independent of setting any out a “fixed, related variable accrual or discovery of an injury. statutory to claim Balam-Chuc, 547 F.3d at 1049; CTS Corp., 134 S. Ct. at 2182–83. Section 1255(i)’s April 30, 2001 deadline is a textbook example of a “specific date that marks the close of a class, not a general period discovery of an injury or accrual of a claim.” based on Balam-Chuc, 547 F.3d at 1049. Second, § 1255(i)’s sunset date does not operate as a procedural time limit on the bringing of some extrinsic cause of action, as a statute of limitations does. Instead, § 1255(i) defines the substantive right itself, with its sunset date one of a list of statutory conditions on eligibility for adjustment 10 of status. That kind of conferral of a substantive right or immunity from substantive liability is the work of a statute of repose, not a statute of limitations. See First United, 882 F.2d at 866 (“A statute of repose creates a substantive right in those protected to be free from liability after a legislativelydetermined period of time.”); cf. United States v. Brockamp, 519 U.S. 347, 352 equitable (1997) tolling (tax-refund because it provision imposed “not not subject only to procedural limitations, but also substantive limitations on the amount of recovery”). Indeed, sunset our as date adjustment court already marking a eligibility. has interpreted substantive In Suisa, § 1255(i)’s endpoint 609 on F.3d at status317, we considered the practice of labor-certification substitutions, by which worker an employer for the the deadline. those beneficiary a different of a prospective § 1255(i) labor The question in that case was the status of substituted beneficiaries “substitute” original certification. aliens could of after labor the April certifications 30, originally Suisa, 609 F.3d at 317–18. individuals properly were 2001 excluded deadline filed as before We concluded that from relief under § 1255(i), because the “sunset date plainly demonstrates that Congress intended that the benefit of § 1255(i) be temporary and apply only to a discrete group of aliens whose applications were 11 pending on April 30, 2001.” intent, we reasoned, would Id. at 320. be That legislative “frustrated” if the class of aliens delineated by § 1255(i)’s sunset date were expanded to include those substituted in at a later date. Id. Like the Ninth Circuit, Balam-Chuc, 547 F.3d at 1050, we think that this understanding of § 1255(i) is clear from the provision’s text and also amply supported by its history. As recounted above, Congress amended the provision several times, with the express purpose different fixed date. wanted instead to of extending the deadline See 146 Cong. Rec. 27160 (2000). establish a more flexible to Had it deadline create equitable exceptions, it could have done so. a or to And had it wanted to extend the deadline beyond April 30, 2001, it could have adopted the proposed legislation doing just that, instead of failing to act on it in 2001. See 147 Cong. Rec. 6418–19 (2001); at Congress see also acted Suisa, 609 purposefully F.3d when it 320 (“We included in presume § that 1255(i) a deadline by which aliens must have filed a visa petition or application for labor certification.”). Finally, the very limited legislative history addressing the April 30, 2001 deadline confirms that it was intended and understood as a statutory cutoff applications could not be accepted. beneficiaries of § 1255(i) might 12 date outside of which Aware that some potential have trouble meeting the deadline, Senator Kennedy recommended not that the deadline for applications Immigration administered be and waived or tolled, Naturalization the INA, but Service consider allowing instead that (“INS”), timely the which then applicants to supplement their applications after the fact: [T]o ensure that all potentially eligible persons have an opportunity to qualify for 245(i), if necessary the INS should accept petitions and applications before the April 30, 2001 sunset date that do not contain all necessary supporting documents, and allow additional documents to be filed after the deadline. 146 Cong. Rec. 27161 (2000). that this “brief We agree with the Ninth Circuit reference in the legislative history recommending agency discretion” is entirely consistent with our reading of § 1255(i)’s deadline as a statute of repose. Balam- Chuc, 547 F.3d at 1050; see also id. at 1046. Accordingly, we join the Ninth Circuit in concluding that the April 30, 2001 deadline in § 1255(i) operates as a statute of repose not subject to equitable tolling. That is enough to dispose of this case. As the BIA explained, Prasad’s motion to reopen solely may established under be denied prima § 1255(i). facie See on the eligibility I.N.S. v. ground for Abudu, that he adjustment 485 U.S. has not of status 94, 104-05 (1988) (BIA may deny a motion to reopen on three independent grounds, including movant’s failure to establish eligibility for the ultimate relief sought). 13 prima facie Because Prasad did not meet the April 30, 2001 deadline, and because that deadline is a statute of repose not subject to equitable tolling, Prasad is not eligible for relief under § 1255(i) and his motion to reopen was properly denied on that basis alone. 3 Enforcement of Congress’s deadline for § 1255(i) eligibility, like enforcement of any statute of repose, may lead to hardship in individual cases. seems to be such a case: On the record before us, this Prasad, who might well have been eligible for adjustment of status under § 1255(i) and who is undergoing cancer treatment in the United States, may be forced to leave the country because his lawyer failed to meet the April 30, 2001 statute deadline of repose spelled out reflects a by statute. But quintessentially § 1255(i)’s “legislative balance,” First United, 882 F.2d at 866, allowing a specified class of persons, defined by a fixed statutory cutoff date, to apply for an adjustment of status that ordinarily would not be available to them. We are without authority to expand on that carefully crafted and limited exception. 3 The BIA properly held Accordingly, like the BIA, we do not reach Prasad’s claim that his attorney’s failure to file a timely labor-certification application deprived him of his right to due process under the Fifth Amendment. Prasad’s additional claims for humanitarian and nunc pro tunc relief are dismissed for lack of jurisdiction; neither was pressed before the BIA, barring judicial review by this court. See Urbina, 745 F.3d at 741; Massis v. Mukasey, 549 F.3d 631, 638 (4th Cir. 2008). 14 that the April 30, 2001 deadline imposed on § 1255(i) eligibility by Congress operates as a statute of repose that is not subject to equitable tolling, and we affirm its order. III. For the reasons set forth above, we deny in part and dismiss in part Prasad’s petition for review. PETITION DENIED IN PART AND DISMISSED IN PART 15
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