Kamleshwar Prasad v. ERIC H. HOLDER, JR., Attorney General

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.

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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).

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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

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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

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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

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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

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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

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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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