Prasad v. Holder
| Decision Date | 12 January 2015 |
| Docket Number | No. 14–1034.,14–1034. |
| Citation | 776 F.3d 222 |
| Parties | Kamleshwar PRASAD, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Fourth Circuit |
OPINION TEXT STARTS HERE
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.
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.
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.
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. 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.
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 ineligiblefor adjustment of status under § 1255(c). He therefore turned to the § 1255(i) 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 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.
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).
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, 189 L.Ed.2d 62 (2014). 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, 110 S.Ct. 1113, 107 L.Ed.2d 1020 (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) ().
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 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...
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