Kamleshwar Prasad v. Eric Holder, Jr.

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.

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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 she meets certain statutory criteria.

8 U.S.C. § 1255(a). 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. 103–317, § 506(b), 108 Stat. 1724, 1765–66 (1994).

Congress intended that the exception be temporary, 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 labor-

certification applications filed on or before January 14, 1998.

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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. See 147 Cong. Rec. 6418–19 (2001).

Accordingly, at the time that Prasad sought to avail

himself of the § 1255(i) exception, it provided 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. It is undisputed that Prasad was unlawfully present

in the United States and thus ineligible for adjustment of

status under § 1255(c). He therefore turned to the § 1255(i)

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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 labor-

certification application, as well as a visa petition, on

Prasad’s behalf. This was not a case in which David was

required to calculate a variable due date for the application,

based on the happening of some event. Instead, the due date was

fixed and precisely specified by statute: April 30, 2001.

Nevertheless, David filed Prasad’s 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 application

filed on or before April 30, 2001. In the removal proceedings

that followed, the Immigration Judge (“IJ”) denied Prasad’s

1

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.

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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. In order to prevail on his motion to reopen or

reconsider, the Board explained, Prasad would 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. Prasad now

petitions this court for review of the BIA’s order.

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II.

A.

We review the BIA’s legal conclusions de novo and give

appropriate deference, in accordance with principles of

administrative law, to its interpretation of the INA. Kuusk v.

Holder, 732 F.3d 302, 304–05 (4th Cir. 2013). We review the

denial of a motion to reopen and reconsider for abuse of

discretion. Mosere v. Mukasey, 552 F.3d 397, 400 (4th Cir.

2009). 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 in failing to file a timely labor-

certification application justifies equitable tolling of

§ 1255(i)’s deadline. 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 the Supreme Court recently explained, a statute of

repose “puts an outer limit on the right to bring a civil

action,” after which no cause of action can accrue. CTS Corp.

v. Waldburger, 573 U.S. ———, 134 S. Ct. 2175, 2182 (2014).

7

Equivalent to a “cutoff,” id. at 2183, a statute of repose

operates as a substantive bar to liability, reflecting a

legislative policy judgment that no legal right should be

recognized after a statutorily determined end point. 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). To avoid interference with those legislative judgments,

statutes of repose generally are treated as “absolute time

limit[s]” and are “not tolled for any reason.” 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 plaintiff must bring suit on an existing cause of

action. 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 Cir. 1995). A chief purpose of statutes of

limitations is to require plaintiffs to pursue their claims

8

promptly and with diligence. See CTS Corp., 134 S. Ct. at 2183.

It follows, the Supreme 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. That

is exactly the rationale for Prasad’s claim to equitable

tolling: He made every effort to comply with § 1255(i)’s

deadline, but was prevented from doing so by his 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 applications must be filed –

2

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.

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April 30, 2001 – rather than a variable deadline pegged to some

other event. As the Ninth Circuit explained in analyzing the

text of § 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.” Id.

(internal quotation marks omitted). Statutes of 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 for everyone, setting out a “fixed, statutory

cutoff date” independent of any variable related to claim

accrual or discovery of an injury. 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 based on

discovery of an injury or accrual of a claim.” 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 legislatively-

determined period of time.”); cf. United States v. Brockamp, 519

U.S. 347, 352 (1997) (tax-refund provision not subject to

equitable tolling because it imposed “not only procedural

limitations, but also substantive limitations on the amount of

recovery”).

Indeed, our court already has interpreted § 1255(i)’s

sunset date as marking a substantive endpoint on status-

adjustment eligibility. In Suisa, 609 F.3d at 317, we

considered the practice of labor-certification substitutions, by

which an employer could “substitute” a different prospective

worker for the original beneficiary of a § 1255(i) labor

certification. The question in that case was the status of

aliens substituted after the April 30, 2001 deadline as

beneficiaries of labor certifications originally filed before

the deadline. Suisa, 609 F.3d at 317–18. We concluded that

those individuals properly were excluded 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.” Id. at 320. That legislative

intent, we reasoned, would be “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 of extending the deadline to a

different fixed date. See 146 Cong. Rec. 27160 (2000). Had it

wanted instead to establish a more flexible deadline or to

create equitable exceptions, it could have done so. 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); see also Suisa, 609 F.3d at 320 (“We presume that

Congress acted purposefully when it included in § 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 date outside of which

applications could not be accepted. Aware that some potential

beneficiaries of § 1255(i) might have trouble meeting the

12

deadline, Senator Kennedy recommended not that the deadline for

applications be waived or tolled, but instead that the

Immigration and Naturalization Service (“INS”), which then

administered the INA, consider allowing timely 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). We agree with the Ninth Circuit

that this “brief 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 may be denied solely on the ground that he has not

established prima facie eligibility for adjustment of status

under § 1255(i). See I.N.S. v. Abudu, 485 U.S. 94, 104-05

(1988) (BIA may deny a motion to reopen on three independent

grounds, including movant’s failure to establish prima facie

eligibility for the ultimate relief sought). Because Prasad did

13

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. On the record before us, this

seems to be such a case: 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 deadline spelled out by statute. But § 1255(i)’s

statute of repose reflects a quintessentially “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. The BIA properly held

3

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).

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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

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