                                                                 NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                     No. 12-3735
                                    _____________

                   FRANCISCO ERNESTO CASTILLO PAUCAR,

                                                    Petitioner

                                           v.

                ATTORNEY GENERAL OF THE UNITED STATES,

                                                 Respondent
                                    _____________

                         On Petition for Review of an Order of
                          the Board of Immigration Appeals
                              Agency No. A098-479-582
                                    _____________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                  October 7, 2013

            Before: FUENTES, GREENBERG, and BARRY, Circuit Judges

                          (Opinion Filed: November 5, 2013)
                                   _____________

                             OPINION OF THE COURT
                                  _____________


FUENTES, Circuit Judge:

      Francisco Ernesto Castillo Paucar seeks review of a dismissal by the Board of

Immigration Appeals (“the BIA”), affirming the immigration judge’s (“IJ”) denial of
Paucar’s request for adjustment of his status. For the reasons that follow, we deny

Paucar’s petition for review.

                                             I.

       Paucar, a native of Ecuador, entered the United States without inspection in or

about 1997. On August 7, 2003, Paucar’s employer, Don Pepe Restaurant, submitted a

request to the Department of Labor (“the DOL”) that Paucar be substituted as the “alien

beneficiary” of a labor certification previously approved for another employee. On

February 16, 2010, Paucar applied to have his status adjusted to that of a legal permanent

resident (“LPR”), pursuant to 8 U.S.C. § 1255(i). The United States Citizenship and

Immigration Services (“the USCIS”) denied his application on July 19, 2010.

       Shortly thereafter, the Department of Homeland Security (“the DHS”) initiated a

removal proceeding against Paucar and served him with a Notice to Appear (“NTA”).

Paucar appeared before an IJ, conceded removability as charged, and informed the IJ that

he would seek relief from removal by reintroducing his application for adjustment of

status to the court. Following the submission of written briefs, the IJ held that Paucar

was not eligible for adjustment of status. On June 8, 2011, Paucar again appeared before

the IJ, where he requested voluntary departure and preserved his right to appeal. The IJ

granted Paucar’s request for voluntary departure until July 8, 2011.

       Paucar appealed to the BIA the IJ’s denial of his application for adjustment of

status. The BIA dismissed Paucar’s appeal, and remanded the case to the IJ for further




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proceedings regarding Paucar’s request for voluntary departure. Paucar then filed a

petition for review with this Court. 1

                                             II.

       “Generally speaking, Congress has limited the use of the adjustment-of-status

mechanism to lawfully present aliens . . . .” Lee v. U.S. Citizenship & Immigration

Servs., 592 F.3d 612, 614 (4th Cir. 2010). Under 8 U.S.C. § 1255(i), however, discrete

categories of undocumented aliens are permitted to seek adjustment of status. Id. at 616.

Section 1255(i) has been amended several times by Congress, most recently on

December 21, 2000. In its most recent iteration, § 1255(i) provides, in relevant part, that

an undocumented alien “who is the beneficiary . . . of . . . an application for a labor

certification under section 1182(a)(5)(A) of this title that was filed pursuant to the

regulations of the Secretary of Labor [on or before the sunset date of April 30, 2001] . . .

may apply to the Attorney General for the adjustment of his or her status to that of an

alien lawfully admitted for permanent residence.” Beneficiaries permitted to seek

adjustment of status pursuant to § 1255(i) are referred to as “grandfathered” aliens.

       Pursuant to his authority to enforce and interpret the Immigration and Nationality

Act (“the INA”), the Attorney General promulgated an interim rule on March 26, 2001,

effective that date, amending the regulations governing eligibility for adjustment of status

under § 1255(i). The interim rule clarified, inter alia, that “[o]nly the alien who was the

beneficiary of the application for the labor certification on or before April 30, 2001, will

1
  Despite the fact that the BIA remanded the case to the IJ, we have jurisdiction to review
the BIA’s determination pursuant to 8 U.S.C. § 1252(a)(1). See Yusupov v. U.S. Attorney
General, 518 F.3d 185, 195 (3d Cir. 2008).
                                              3
be considered to have been grandfathered for purposes of filing an application for

adjustment of status,” and that “[a]n alien who was substituted for the previous

beneficiary of the application for the labor certification after April 30, 2001, will not be

considered to be a grandfathered alien.” 66 F.R. 16383, 16389 (effective Mar. 26, 2001).

The rule was published without notice and comment. The Attorney General provided the

following explanation of why good cause existed to promulgate an interpretation of §

1255(i) in an expedited fashion:

        The implementation of this rule without prior notice and comment, and
        without a delayed effective date, is necessary to implement recently enacted
        statutory changes that took effect upon enactment on December 21, 2000.
        There is a very short window of opportunity (ending on April 30, 2001)
        provided by the new law for the filing of immigrant visa petitions and
        applications for labor certification, in order to preserve the ability of
        eligible aliens to adjust their status under Section 245(i) of the Act (8
        U.S.C. 1255(i)). . . . It would be impractical and contrary to the public
        interest to publish a proposed rule or to delay the effective date of these
        procedural instructions, because the public comment period and a delayed
        effective date would consume most of the very limited time statutorily
        available for qualified applicants to take advantage of the new law.

Id. at 16387. This rule was codified at 8 C.F.R. § 245.10. Id. at 16388-89. The final

rule, promulgated on December 9, 2002, is in all relevant respects identical to the interim

rule.

        Following the passage of the Homeland Security Act of 2002, the Attorney

General promulgated a new rule, codified at 8 C.F.R. § 1245.10, that reproduced the

relevant portions 8 C.F.R. § 245.10. See 68 Fed. Reg. 9824, 9842 (effective Feb. 28,

2003). Thus, although § 1245.10 now technically controls, the fate of that regulation is

tied to the propriety of Attorney General’s promulgation of § 245.10.


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                                              III.

       Because Don Pepe Restaurant did not seek to substitute Paucar as the alien

beneficiary on its previously approved labor certification until April 2003, Paucar is

patently not a grandfathered alien under Attorney General’s current interpretation of §

1255(i). See Kar Onn Lee v. Holder, 701 F.3d 931, 933 (2d Cir. 2012) (explaining that §

245.10 “interpret[s] [§ 1255(i)] as applying only to beneficiaries actually listed on labor-

certification applications as of April 30, 2001—not individuals who were later substituted

as beneficiaries”). Paucar nonetheless argues that the IJ and BIA erred in failing to adjust

his status. According to Paucar, § 245.10—and by extension, § 1245.10—runs afoul of

the Administrative Procedure Act (“the APA”), because the Attorney General

inappropriately issued an interim rule interpreting § 1255(i) without notice and comment.

This argument fails for several reasons.

       First, Paucar’s contention that the Attorney General improperly waived notice and

comment is time barred. Pursuant to 28 U.S.C. § 2401(a), “every civil action

commenced against the United States shall be barred unless the complaint is filed within

six years after the right of action first accrues.” It is well established that the six-year

statute of limitations applies to claims brought pursuant to the APA. See, e.g., Izaak

Walton League of Am., Inc. v. Kimbell, 558 F.3d 751, 758 (8th Cir. 2009). Generally,

“[t]he right of action first accrues on the date of the final agency action.” Harris v. FAA,

353 F.3d 1006, 1009-10 (D.C. Cir. 2004). Here, that date was March 26, 2001, when the

Attorney General published the interim rule. At the very latest, however, Paucar’s right

of action first accrued on August 7, 2004: On that date, Don Pepe Restaurant substituted

                                               5
Paucar onto its labor certification, meaning Paucar was at that point directly affected by

the Attorney General’s interpretation of § 1255(i) and should have been aware of his right

to challenge it. See Kimbell, 558 F.3d at 759 (“[A] plaintiff’s claim accrues for the

purposes of § 2401(a) when the plaintiff either knew, or in the exercise of reasonable

diligence should have known, that [he or she] had a claim.” (internal quotation marks and

citations omitted)). But Paucar did not challenge the waiver of notice and comment until

he filed his petition for review in this Court on January 18, 2013, more than six years

beyond either possible accrual date.

       Paucar concedes that APA claims are subject to a six-year statute of limitations,

but argues that the statute of limitations does not apply to his challenge of § 245.10.

Because § 2401(a) applies only to “civil action commenced against the United States,”

argues Paucar, that statute does not affect his ability to collaterally attack § 245.10 in the

context of his removal proceeding. We disagree. Again, Paucar was capable of

challenging the regulation in district court since at least 2004, but failed to do so. Cf.

M.B. v. Quarantillo, 301 F.3d 109, 111-13 (3d Cir. 2002). Having sat on his right to seek

review of the regulation, Paucar is not now permitted to circumvent the six-year statute of

limitations by collaterally attacking the regulation during his removal proceeding. The

Ninth Circuit’s opinion in United States v. Lowry, 512 F.3d 1194 (9th Cir. 2008), is

instructive. There, the court precluded a criminal defendant from collaterally attacking

an agency decision as part of his defense, on the grounds that the tactic amounted to a

sidestepping of the six-year statute of limitations. Id. at 1202-03. The reasoning in

Lowry applies in this case.

                                               6
       Second, even if this action were not untimely, Paucar’s attack on 8 C.F.R. §

245.10 would nonetheless fail, as the Attorney General’s stated rationale for foregoing

notice and comment survives both arbitrary and capricious and de novo review. See

United States v. Reynolds, 710 F.3d 498, 509 (3d Cir. 2013) (declining to determine

which standard of review applies). Notice and comment may be waived “when the

agency for good cause finds (and incorporates the finding and a brief statement of reasons

therefor in the rules issued) that notice and public procedure thereon are impracticable,

unnecessary, or contrary to the public interest.” 5 U.S.C. § 553(b)(B). As we recently

explained, an agency has good cause to waive notice and comment where, inter alia, “an

imminent, externally imposed deadline or the existence of an emergency” created

urgency to promulgate the rule. Reynolds, 710 F.3d at 512.

       Here, the Attorney General interpreted § 1255(i), which was enacted on December

21, 2000, as precluding an alien from being considered grandfathered unless he listed as

the beneficiary of a labor certification by or before April 30, 2001. As Paucar now

concedes, this interpretation of § 1255(i) was reasonable. Indeed, given § 1255(i)’s

“apparent purpose” of providing “immigrants with a limited opportunity to obtain and

benefit from grandfathered status by the ‘sunset’ date of April 30, 2001,” the Attorney

General’s reading of the statute “makes more sense” than a reading extending the

grandfather provision to any beneficiaries substituted onto labor certifications after the

sunset date. Kar Onn Lee, 701 F.3d at 937; see also Suisa v. Holder, 609 F.3d 314, 20

(4th Cir. 2010) (noting that permitting aliens substituted after the sunset date to qualify as

grandfathered would “frustrate[]” the “plain[]” purpose of the statute).

                                              7
       Having reasonably interpreted the regulation to preclude the substitution of

beneficiaries of labor certifications filed before the sunset date, the Attorney General had

good cause to publish the interim rule without notice and comment. The regulation was

published in the Federal Register on March 26, 2001; thus, had the Attorney General not

applied the good cause exception, § 245.10 would have been promulgated no earlier than

April 25, 2001. See 5 U.S.C. § 553(d) (providing that an agency must publish a rule not

less than 30 days before its effective date). This would have left aliens not yet substituted

onto a labor certification who wished to take advantage of § 1255(i) insufficient time to

file the requisite paperwork by the sunset date. By waiving notice and comment, the

Attorney General gave aliens hoping to become grandfathered under § 1255(i) an

opportunity to secure the necessary employer or family sponsor and to file the requisite

visa petition or labor certification. Doing so was clearly within the public interest, given

that aliens and their employers may well have been under the impression—prior to the

promulgation of the Attorney General’s rule—that aliens could retroactively take

advantage of the April 30, 2001 sunset date set forth in § 1255(i).

       In short, the importance of providing adequate notice to aliens of the Attorney

General’s interpretation of § 1255(i) constituted good cause under 5 U.S.C. § 553(b)(B).

The Attorney General therefore acted properly when he promulgated the interim rule

interpreting the statute without notice and comment.

                                            IV.

       For the foregoing reasons, Paucar’s petition for review is denied.



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