By Taylor Ey
Last Monday, January 12, the Fourth Circuit issued a published opinion in the civil case of Prasad v. Holder. Appellant Prasad appealed the decision of the Board of Immigration Appeals, rejecting his claim that his status should be changed from one who is unlawfully present in the United States to that of lawful permanent resident.
Does the Deadline in the Immigration and Nationality Act Operate as a Statute of Repose or Is It Subject to Equitable Tolling?
The Immigration and Nationality Act, 8 U.S.C. § 1255(i), provides that if an unlawful citizen is the beneficiary of a labor-certification application filed on or before April 30, 2001, the unlawful citizen may be eligible for adjustment of status. Appellant filed a labor-certification application; he conceded that his application was filed more than two months after April 30, 2001. However, Appellant argued that the deadline should be equitably tolled because his attorney failed to file a timely application. The Board of Immigration Appeals ruled against Appellant, and the Fourth Circuit denied petition for review in part, and dismissed in part.
Appellant’s History of Citizenship Status
Appellant gained entry to the United States on or about May 11, 2000. At that time, he was unlawfully present. He sought to change his citizenship status under 8 U.S.C. § 1255(i). Appellant’s employer retained attorney Earl S. David to file a labor-certification application on Appellant’s behalf. David filed Appellant’s application on July 13, 2001, even though the due date was clearly April 30, 2001.
Appellant filed for adjustment of status in 2007. His status application was denied because the labor-certification application was filed after April 30, 2001.
The Board of Immigration Appeals affirmed the decision of the Immigration Judge, denying adjustment of status.
The Date in the Immigration and Nationality Act Operates as a Statute of Repose and Not a Statute of Limitations Subject to Equitable Tolling
The Fourth Circuit looked to the Ninth Circuit, the only other circuit to address the question in this case. The Ninth Circuit decided that the deadline operates as a status of repose that cannot be equitably tolled. Additionally, the Fourth Circuit explained that “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.”
Statutes of Repose Have a Fixed End Point, Define Substantive Rights
Because the statute sets out a fixed end point by which the labor-certification applications must be filed, and the statute defines the substantive right, the Fourth Circuit determined that the deadline in the statute met the defining characteristics of a statute of repose.
Additionally, the Fourth Circuit cited the legislative history of the Immigration and Nationality Act, confirming that Congress intended the deadline to operate as a statute of repose.
The Deadline Acts as a Statute of Repose
Because Appellant did not file his labor-certification application before or on the deadline required by the Immigration and Nationality Act, Appellant was not eligible for adjustment of status. The Fourth Circuit recognized the harshness of the black and white rule, and how in cases such as the instant case, the rule could result in hardship. However, because the Immigration and Nationality Act only intended a limited exception, the Fourth Circuit was without authority to expand on the exception.