NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 12-3735
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FRANCISCO ERNESTO CASTILLO PAUCAR,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
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On Petition for Review of an Order of
the Board of Immigration Appeals
Agency No. A098-479-582
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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)
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OPINION OF THE COURT
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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).
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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
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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.
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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).
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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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