Balam-Chuc v. Mukasey

• Decision Date: 24 October 2008
• Docket Number: No. 06-72887.,06-72887.
• Citation: 547 F.3d 1044
• Parties: Jose Eulalio BALAM-CHUC, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

547 F.3d 1044

Jose Eulalio BALAM-CHUC, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.

No. 06-72887.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 27, 2008.

Filed October 24, 2008.

Carol L. Edward, Eric P. Lin, and Shannon M. Underwood, Law Offices of Carol L. Edward & Associates, P.S., Seattle, WA, for the petitioner.

Peter D. Keisler, Stephen J. Flynn, and Dalin R. Holyoak, U.S. Department of Justice, Civil Division, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A79-806-794.

Before: T.G. NELSON, HAWKINS, and JAY S. BYBEE, Circuit Judges.

OPINION

BYBEE, Circuit Judge:

Petitioner Jose Eulalio Balam-Chuc ("Balam-Chuc") seeks review of a dismissal of his appeal to the Board of Immigration Appeals ("BIA"). Balam-Chuc argues that the BIA improperly decided that the April 30, 2001, filing deadline in § 245(i) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1255(i), is a statute of repose, and is thus not subject to equitable tolling for a claim of ineffective assistance of counsel. He further claims that his counsel's ineffective assistance constitutes a due process violation under the Fifth Amendment. For the reasons set forth below, we deny his petition.

I. FACTS AND PROCEDURAL HISTORY

A. The LIFE Act and Amendments

The Legal Immigration Family Equity Act ("LIFE Act"), INA § 245 (1999) (codified at 8 U.S.C. § 1255 (1999)), was enacted, in part, to provide a mechanism whereby the spouses and minor children of lawful permanent residents could apply more quickly for immigrant visas. See 146 CONG. REC. S11851 (Dec. 15, 2000) (statement of Sen. Kennedy).¹ Congress established a system of temporary visas in order to provide "a speedy mechanism for the spouses and minor children of U.S. citizens to obtain their immigrant visas in the U.S., rather than wait for long periods of time outside the U.S." Id. The LIFE Act also provided a method whereby an alien that had entered the United States without inspection or parole, but who was otherwise eligible for an immigrant visa, could apply to the Attorney General for an adjustment of status. 8 U.S.C. § 1255(i) (1999). This adjustment of status—to that of alien lawfully admitted for permanent residence—would allow the alien to remain in the United States, thus avoiding the undesirable alternative of forcing aliens to leave their families in the United States while they applied for a visa abroad. To qualify for this status adjustment, the alien had to file a petition for classification under 8 U.S.C. § 1154 on or before January 14, 1998, and pay a $1000 fee. Id.

In 2000, Congress amended the LIFE Act to expand the class of beneficiaries who could apply for adjustment of status under INA § 245(i). Among other things, Congress moved the deadline for filing a visa petition from January 14, 1998, to April 30, 2001, for all aliens present in the United States as of the statute's date of enactment. See 8 U.S.C. § 1255(i). Members of Congress encouraged the Immigration and Naturalization Service ("INS") to "ensure that all potentially eligible persons have an opportunity to qualify for 245(i)." 146 CONG. REC. at S11851 (Dec. 15, 2000) (statement of Sen. Kennedy). Senator Kennedy recommended that, if necessary, "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." Id. Thus, while members of Congress encouraged flexibility, for an alien to take advantage of the adjustment of status provision of INA § 245(i) after the amendment—and avoid returning to his or her country of citizenship—the alien must have been present in the United States on December 21, 2000, and must have petitioned the Attorney General for an immigration visa prior to April 30, 2001.

B. Balam-Chuc's Application

Balam-Chuc is a native citizen of Mexico who entered the United States without inspection or parole around August 1997 at or near San Ysidro, California. On May 8, 2000, in Tacoma, Washington, he married Rebekah A. Hinman ("Mrs. Balam-Chuc"), a United States citizen. The Balam-Chucs have two children, both U.S. citizens, currently ages six and three.

In 2001, Balam-Chuc worked to solidify his immigration status in the United States. Mrs. Balam-Chuc hired the DeDamm Law Firm to file a family visa petition and application for adjustment of status on behalf of her husband.² She signed and dated an Immediate Relative Visa Petition, Form I-130, on March 20, 2001, and submitted it to her attorney with the appropriate documents and fees. Mindful of the April 30th deadline, Mrs. Balam-Chuc called the law firm on March 30, 2001, and she was assured that the petition would be hand-delivered on time.

INS, however, did not receive the I-130 petition until June 13, 2001, almost a month and a half after the statutory deadline. The Balam-Chucs learned that the petition had been filed late when Balam-Chuc appeared for his adjustment interview in July 2002. Balam-Chuc turned to the DeDamm Law Firm, but no one could provide proof that the petition had been submitted prior to the deadline. Gabriel Banfi, who supervised the preparation of the I-130, claims that a DeDamm paralegal submitted the application to the INS (now the Department of Homeland Security ("DHS")) prior to April 30, 2001. However, he acknowledges that the application might have been returned because it was not accompanied by the appropriate filing fee, as required by 8 C.F.R. § 103.2(a)(1). Regardless of Banfi's claims, neither the Balam-Chucs nor anyone at the firm could provide proof that the petition had been submitted prior to the deadline, and on appeal, Balam-Chuc apparently concedes that he cannot provide evidence of a timely filing. Although the INS eventually approved the I-130 petition on October 14, 2002, it ultimately denied Balam-Chuc's application for adjustment of status based on the untimely filing of the corresponding petition.

C. Removal Proceedings

Two years later, on May 10, 2004, DHS served Balam-Chuc with a Notice to Appear, charging that he was subject to removal under 8 U.S.C. § 1182(a)(6)(A)(i) as an alien who was present without having been admitted or paroled. On August 18, 2004, Balam-Chuc appeared with new counsel before the Immigration Judge ("IJ") in Seattle. At the hearing, Balam-Chuc admitted to the allegations lodged by DHS and conceded removability. He argued, however, that he should be eligible for an adjustment of status under the LIFE Act amendment because he had in fact filed the petition on time, and in the alternative, the statute of limitations should have been tolled due to the ineffective assistance of his prior counsel.

On January 20, 2005, the IJ decided that Balam-Chuc had failed to establish that he had timely filed the appropriate application and filing fee. Citing our decision in Munoz v. Ashcroft, 339 F.3d 950 (9th Cir. 2003), the IJ held that because INA § 245(i) was a statute of repose—and not a statute of limitations—the deadline was not subject to equitable tolling due to ineffective counsel. Because he failed to file his petition on or before April 30, 2001, Balam-Chuc was thus ineligible for adjustment of status under INA § 245(i). Accordingly, the IJ sustained the charge of removability.

Balam-Chuc appealed the IJ's decision to the BIA, arguing that the IJ incorrectly classified the deadline as a statute of repose instead of a statute of limitations and that the statute should be tolled due to ineffective assistance of counsel. He further argued that the BIA should adjudicate the application nunc pro tunc. The BIA rejected these arguments, finding that the IJ properly determined that INA § 245(i) was a statute of repose not subject to equitable tolling. The Board noted that the IJ and the BIA might also lack the authority to toll the filing deadline, as only DHS currently has jurisdiction over visa petitions. It further held that nunc pro tunc relief was improper and dismissed the appeal.

II. ANALYSIS

Balam-Chuc argues on appeal that the BIA erred in determining that the April 30, 2001, deadline was a statute of repose not subject to equitable tolling. He asserts that the deadline is a statute of limitations which should be equitably tolled due to ineffective assistance of counsel. He further argues that the ineffective assistance of his counsel violated his due process rights.³ Finally, Balam-Chuc challenges the BIA's statement that it might lack authority to toll the statute of limitations merely because DHS now oversees the agency process for accepting visa petitions.

"On a petition for review, the BIA's decisions regarding purely legal questions are reviewed de novo, `giving deference to the BIA's interpretation unless that interpretation is contrary to the plain and sensible meaning of the statute.' " Almaghzar v. Gonzales, 457 F.3d 915, 920 (9th Cir.2006) (quoting Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004)). "We review the BIA's findings of fact, including credibility findings, for substantial evidence and must uphold the BIA's finding unless the evidence compels a contrary result." Monjaraz-Munoz v. INS, 327 F.3d 892, 895 (9th Cir.2003). We review due process claims de novo. Lara-Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir.2004).

As discussed below, our precedent compels the conclusion that the deadline imposed by Congress under INA § 254(i) constitutes a statute of repose, not subject to equitable tolling. We also find that ineffective assistance of counsel in preparing and filing a petition does not implicate the Fifth Amendment. Because we find no error in the merits of the BIA's decision, we do not discuss the remedies among DHS and INS that were otherwise available to the BIA.

A. Statute of Limitations or Statute of Repose

"There is a crucial distinction in the law between `st...