Wake Forest Law Review

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By: Steven M. Franklin

Today, in Prasad v. Holder, the Fourth Circuit affirmed the Board of Immigration Appeals’ (BIA) order dismissing Mr. Kamleshwar Prasad’s adjustment of status claim under 8 U.S.C. § 1255(i)(1)(B)(ii) for failure to show prima facie eligibility for relief.

Petitioner Prasad Sought to Become Lawful Permanent Resident Under 8 U.S.C. § 1255(i)

Mr. Kamleshwar Prasad is a native citizen of India who is unlawfully present in the United States. Currently undergoing cancer treatment, Mr. Prasad sought to become a lawful permanent resident under Section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i). Under this exception, an unlawfully present alien may be eligible for an adjustment of status if he is the beneficiary of a labor-certification application filed on or before April 30, 2001.

Mr. Prasad was admitted to the U.S. around May 11, 2000, and his then-employer retained Mr. Earl S. David to assist Mr. Prasad with his labor-certification and visa petition. Unfortunately, Mr. David, failed to file the labor-certification application until July 13, 2001, two months after the statutory deadline. In fact, it appears that Mr. Prasad was not the only individual affected by Mr. David’s poor performance, as he was suspended in 2004, for fifteen months from the practice of law in New York and from practice before the BIA.

In 2007, assisted by different counsel, Mr. Prasad filed for an adjustment of status. The United States Citizenship and Immigration Services denied this request, determining that Mr. Prasad was not the beneficiary of a labor-certification application filed on or before April 30, 2001. Mr. Prasad filed a motion to reopen and reconsider, arguing that Mr. David’s ineffective assistance should serve as a basis for equitable tolling of the § 1255(i) deadline. However, the Immigration Judge denied this request, which was subsequently affirmed by the BIA.

Prasad Argues § 1255(i) Sunset Date Operates as a Statue of Limitation

The central issue in this case is whether § 1255(i) sunset date of April 30, 2001, operates as a Statute of Limitation (SOL) or Statute of Repose (SOR). If, as Mr. Prasad argues, § 1255(i) is an SOL, equitable tolling of the deadline may be appropriate in extraordinary circumstances. In this case, Mr. Prasad made every effort to comply with the April 30, deadline, but he was prevented from doing so due to Mr. David’s extraordinary deficiencies.

Fourth Circuit Concludes § 1255(i) Sunset Date Operates as a Statute of Repose

The Fourth Circuit concluded that the April 30, 2001, sunset date operates as an SOR, and thus may not be tolled. In reaching this decision, the Court looked at two differentiating factors between an SOL and an SOR.

First, the Court analyzed the fixed and specific time-certain date by which applications must be filed. SOL’s are typically tied to the date on which the claim accrues, which allows for different deadlines for different plaintiffs. SOR’s on the other hand, typically have a fixed deadline that is the same for everyone. § 1255(i)’s deadline of April 30, 2001, is thus a prime example of an SOR.

Second, an SOL operates as “a procedural time limit on the bringing of some extrinsic cause of action.” An SOR, however, “creates a substantive right in those protected to be free from liability after a legislatively determined period of time.” Here, § 1255(i) defines the substantive right, that an unlawfully admitted alien may adjust his or her status to a lawfully admitted alien for permanent residence, and the sunset date is simply one of the statutory conditions that must be met for adjustment.

The Court also looked to its previous decision in Suisa v. Holder, where the Fourth Circuit interpreted § 1255(i)’s sunset date as marking a “substantive endpoint on status-adjustment eligibility.” The Court also agreed with the Ninth Circuit in Balum-Chuc v. Mukasey, that had Congress wanted to extend the deadline beyond April 30, 2001, it could have easily done so. Its legislative history further supports this rationale, as Senator Kennedy recommended an extension for incomplete applications submitted before the sunset date, but failed to make any recommendation allowing the deadline to be waived or tolled.

The Fourth Circuit Affirms

Although recognizing that the enforcement of this deadline may lead to hardship in individual cases, especially in the case at hand, the Court does not have the authority to expand on that “carefully crafted and limited exception.” Thus, the Fourth Circuit affirmed the BIA’s order, dismissing Prasad’s appeal for failure to show prima facie eligibility for relief.

By: Carson Smith

Last Wednesday, the Fourth Circuit denied two separate petitions for review of removal orders, each of which addressed the question of whether an individual qualifies as a lawful permanent resident in the United States. In Chavez v. Holder, the Court upheld the Board of Immigration’s (BIA) decision to remove the plaintiff, a permanent resident, from the United States because of a larceny conviction. Full details of the Court’s decision can be found here. In Zoubairi v. Holder, the Court upheld the BIA’s ruling that Plaintiff, Khalil Zoubairi, did not qualify for lawful permanent residency (LPR) because the marriage from which LPR status could have arisen was not entered into in good faith. Consequentially, Zoubairi and his two sons were ordered to be removed from the United States.

Zoubairi entered the United States in 1995 on a tourist visa. While Zoubairi overstayed the visa, no legal action was taken, and, in 2001, he married Joyce Clark, a United States citizen. Under 8 U.S.C. § 1186, an alien is conditionally granted LPR status upon marriage to a citizen. However, LPR status only applies for the course of the marriage. In 2004, the couple jointly filed a petition to remove the conditional element. In response, the Department of Homeland Security (DHS) claimed that Zoubairi and Clark’s marriage was not entered into in good faith and that the conditional LPR status should be removed.

Zoubairi and Clark divorced in 2005. In 2008, Zoubairi withdrew the jointly-filed petition and, in its place, applied for a waiver of the joint-filing requirement pursuant to 8 U.S.C. § 1186(a)(C)(4). This section of the statute allows for the extension of full LPR status to aliens who (1) have alien children, (2) were previously married to a United States citizen, and (3) would undergo extreme hardship if removed from the country. The DHS denied the application and filed for removal proceedings in immigration court.

In 2012, the immigration court judge ordered Zoubairi and his two sons to be removed from the United States, finding that the marriage between Zoubairi and Clark was not entered into in good faith. The BIA dismissed Zoubairi’s appeal on the basis that the immigration judge had made no clear error in his ruling. A timely appeal to the Fourth Circuit followed.

In determining whether a marriage is entered into in good faith, the Court asked “whether [the couple] intended to establish a life together at the time they were married.” To answer this question, the Court looked to (1) the assets and liabilities of the parties; (2) the length of cohabitation during the marriage; and (3) birth certificates of any children born during the marriage. After laying out the standard and pertinent factors, the Fourth Circuit “conclude[d] that the evidence in the record clearly and overwhelmingly support[ed] [BIA’s] determination that Zoubairi did not intend to establish a marital life with Clark at the time he entered into the marriage.” It can be inferred that the Court found persuasive the numerous inconsistencies between the testimony of Zoubairi and Clark regarding their marriage. Accordingly, the Court upheld the denial of Zoubairi’s petition for removal.