                               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.
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.




                                            2
                                              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.

                                              3
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)

                                              4
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.



                                                   5
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.




                                           6
                                             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).

                                              7
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

                                                           8
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.



                                          9
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

                                             10
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

                                              11
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

                                                  12
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


                                          13
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).



                                            14
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




                                       15
