Kamleshwar Prasad v. Eric Holder, Jr. , 776 F.3d 222 ( 2015 )


Menu:
  •                                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     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.
    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.          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)
    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 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.
    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.      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.
    6
    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.
    9
    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).
    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