Balam-Chuc v. Mukasey

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JOSE EULALIO BALAM-CHUC, 
Petitioner, No. 06-72887
v.
 Agency No.
A79-806-794
MICHAEL B. MUKASEY, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
August 27, 2008—Seattle, Washington

Filed October 24, 2008

Before: Thomas G. Nelson, Michael Daly Hawkins, and
Jay S. Bybee, Circuit Judges.

Opinion By Judge Bybee

14941
 BALAM-CHUC v. MUKASEY 14943

COUNSEL

Carol L. Edward, Eric P. Lin, and Shannon M. Underwood,
Law Offices of Carol L. Edward & Associates, P.S., Seattle,
Washington, for the petitioner.

Peter D. Keisler, Stephen J. Flynn, and Dalin R. Holyoak,
U.S. Department of Justice, Civil Division, Washington, D.C.,
for the respondent.

OPINION

BYBEE, Circuit Judge:

Petitioner Jose Eulalio Balam-Chuc (“Balam-Chuc”) seeks
review of a dismissal of his appeal to the Board of Immigra-
tion Appeals (“BIA”). Balam-Chuc argues that the BIA
improperly decided that the April 30, 2001, filing deadline in
§ 245(i) of the Immigration and Nationality Act (“INA”), 8
U.S.C. § 1255(i), is a statute of repose, and is thus not subject
to equitable tolling for a claim of ineffective assistance of
counsel. He further claims that his counsel’s ineffective assis-
14944 BALAM-CHUC v. MUKASEY
tance constitutes a due process violation under the Fifth
Amendment. For the reasons set forth below, we deny his
petition.

I. FACTS AND PROCEDURAL HISTORY

A. The LIFE Act and Amendments

The Legal Immigration Family Equity Act (“LIFE Act”),
INA § 245 (1999) (codified at 8 U.S.C. § 1255 (1999)), was
enacted, in part, to provide a mechanism whereby the spouses
and minor children of lawful permanent residents could apply
more quickly for immigrant visas. See 146 CONG. REC.
S11851 (Dec. 15, 2000) (statement of Sen. Kennedy).1 Con-
gress established a system of temporary visas in order to pro-
vide “a speedy mechanism for the spouses and minor children
of U.S. citizens to obtain their immigrant visas in the U.S.,
rather than wait for long periods of time outside the U.S.” Id.
The LIFE Act also provided a method whereby an alien that
had entered the United States without inspection or parole, but
who was otherwise eligible for an immigrant visa, could apply
to the Attorney General for an adjustment of status. 8 U.S.C.
§ 1255(i) (1999). This adjustment of status—to that of alien
lawfully admitted for permanent residence—would allow the
alien to remain in the United States, thus avoiding the unde-
sirable alternative of forcing aliens to leave their families in
the United States while they applied for a visa abroad. To
qualify for this status adjustment, the alien had to file a peti-
tion for classification under 8 U.S.C. § 1154 on or before Jan-
uary 14, 1998, and pay a $1000 fee. Id.
1
Because the LIFE Act amendments were created outside of the ordi-
nary Committee process, the Chairman and Ranking Member of the Sub-
committee on Immigration of the Senate Committee on the Judiciary—
Senators Abraham and Kennedy—provided a joint memorandum concern-
ing the amendments. Much of the legislative history referenced here
comes from this joint memorandum, as introduced by Senator Kennedy.
 BALAM-CHUC v. MUKASEY 14945
In 2000, Congress amended the LIFE Act to expand the
class of beneficiaries who could apply for adjustment of status
under INA § 245(i). Among other things, Congress moved the
deadline for filing a visa petition from January 14, 1998, to
April 30, 2001, for all aliens present in the United States as
of the statute’s date of enactment. See 8 U.S.C. § 1255(i).
Members of Congress encouraged the Immigration and Natu-
ralization Service (“INS”) to “ensure that all potentially eligi-
ble persons have an opportunity to qualify for 245(i).” 146
CONG. REC. at S11851 (Dec. 15, 2000) (statement of Sen.
Kennedy). Senator Kennedy recommended that, if necessary,
“INS should accept petitions and applications before the April
30, 2001 sunset date that do not contain all necessary support-
ing documents, and allow additional documents to be filed
after the deadline.” Id. Thus, while members of Congress
encouraged flexibility, for an alien to take advantage of the
adjustment of status provision of INA § 245(i) after the
amendment—and avoid returning to his or her country of
citizenship—the alien must have been present in the United
States on December 21, 2000, and must have petitioned the
Attorney General for an immigration visa prior to April 30,
2001.

B. Balam-Chuc’s Application

Balam-Chuc is a native citizen of Mexico who entered the
United States without inspection or parole around August
1997 at or near San Ysidro, California. On May 8, 2000, in
Tacoma, Washington, he married Rebekah A. Hinman (“Mrs.
Balam-Chuc”), a United States citizen. The Balam-Chucs
have two children, both U.S. citizens, currently ages six and
three.

In 2001, Balam-Chuc worked to solidify his immigration
status in the United States. Mrs. Balam-Chuc hired the
DeDamm Law Firm to file a family visa petition and applica-
tion for adjustment of status on behalf of her husband.2 She
2
Many of the events summarized here come from facts laid out in a let-
ter dated February 19, 2003, from Mrs. Balam-Chuc to the Department of
14946 BALAM-CHUC v. MUKASEY
signed and dated an Immediate Relative Visa Petition, Form
I-130, on March 20, 2001, and submitted it to her attorney
with the appropriate documents and fees. Mindful of the April
30th deadline, Mrs. Balam-Chuc called the law firm on March
30, 2001, and she was assured that the petition would be
hand-delivered on time.

INS, however, did not receive the I-130 petition until June
13, 2001, almost a month and a half after the statutory dead-
line. The Balam-Chucs learned that the petition had been filed
late when Balam-Chuc appeared for his adjustment interview
in July 2002. Balam-Chuc turned to the DeDamm Law Firm,
but no one could provide proof that the petition had been sub-
mitted prior to the deadline. Gabriel Banfi, who supervised
the preparation of the I-130, claims that a DeDamm paralegal
submitted the application to the INS (now the Department of
Homeland Security (“DHS”)) prior to April 30, 2001. How-
ever, he acknowledges that the application might have been
returned because it was not accompanied by the appropriate
filing fee, as required by 8 C.F.R. § 103.2(a)(1). Regardless
of Banfi’s claims, neither the Balam-Chucs nor anyone at the
firm could provide proof that the petition had been submitted
prior to the deadline, and on appeal, Balam-Chuc apparently
concedes that he cannot provide evidence of a timely filing.
Although the INS eventually approved the I-130 petition on
October 14, 2002, it ultimately denied Balam-Chuc’s applica-
tion for adjustment of status based on the untimely filing of
the corresponding petition.

C. Removal Proceedings

Two years later, on May 10, 2004, DHS served Balam-
Chuc with a Notice to Appear, charging that he was subject

Immigration—a letter written almost two years after the deadline for filing
the visa petition. Although the letter was attached as an exhibit to Balam-
Chuc’s appeal to the BIA, it was not submitted in the form of an affidavit
or sworn statement. See 28 U.S.C. § 1746. The accuracy of these events
may be in dispute. For purposes of this opinion, we relate the background
facts as Balam-Chuc has presented them.
 BALAM-CHUC v. MUKASEY 14947
to removal under 8 U.S.C. § 1182(a)(6)(A)(i) as an alien who
was present without having been admitted or paroled. On
August 18, 2004, Balam-Chuc appeared with new counsel
before the Immigration Judge (“IJ”) in Seattle. At the hearing,
Balam-Chuc admitted to the allegations lodged by DHS and
conceded removability. He argued, however, that he should
be eligible for an adjustment of status under the LIFE Act
amendment because he had in fact filed the petition on time,
and in the alternative, the statute of limitations should have
been tolled due to the ineffective assistance of his prior coun-
sel.

On January 20, 2005, the IJ decided that Balam-Chuc had
failed to establish that he had timely filed the appropriate
application and filing fee. Citing our decision in Munoz v.
Ashcroft, 339 F.3d 950 (9th Cir. 2003), the IJ held that
because INA § 245(i) was a statute of repose—and not a stat-
ute of limitations—the deadline was not subject to equitable
tolling due to ineffective counsel. Because he failed to file his
petition on or before April 30, 2001, Balam-Chuc was thus
ineligible for adjustment of status under INA § 245(i).
Accordingly, the IJ sustained the charge of removability.

Balam-Chuc appealed the IJ’s decision to the BIA, arguing
that the IJ incorrectly classified the deadline as a statute of
repose instead of a statute of limitations and that the statute
should be tolled due to ineffective assistance of counsel. He
further argued that the BIA should adjudicate the application
nunc pro tunc. The BIA rejected these arguments, finding that
the IJ properly determined that INA § 245(i) was a statute of
repose not subject to equitable tolling. The Board noted that
the IJ and the BIA might also lack the authority to toll the fil-
ing deadline, as only DHS currently has jurisdiction over visa
petitions. It further held that nunc pro tunc relief was
improper and dismissed the appeal.
14948 BALAM-CHUC v. MUKASEY
II. ANALYSIS

Balam-Chuc argues on appeal that the BIA erred in deter-
mining that the April 30, 2001, deadline was a statute of
repose not subject to equitable tolling. He asserts that the
deadline is a statute of limitations which should be equitably
tolled due to ineffective assistance of counsel. He further
argues that the ineffective assistance of his counsel violated
his due process rights.3 Finally, Balam-Chuc challenges the
BIA’s statement that it might lack authority to toll the statute
of limitations merely because DHS now oversees the agency
process for accepting visa petitions.

“On a petition for review, the BIA’s decisions regarding
purely legal questions are reviewed de novo, ‘giving defer-
ence to the BIA’s interpretation unless that interpretation is
contrary to the plain and sensible meaning of the statute.’ ”
Almaghzar v. Gonzales, 457 F.3d 915, 920 (9th Cir. 2006)
(quoting Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir.
2004)). “We review the BIA’s findings of fact, including
credibility findings, for substantial evidence and must uphold
the BIA’s finding unless the evidence compels a contrary
result.” Monjaraz-Munoz v. INS, 327 F.3d 892, 895 (9th Cir.
2003). We review due process claims de novo. Lara-Torres
v. Ashcroft, 383 F.3d 968, 972 (9th Cir. 2004).

As discussed below, our precedent compels the conclusion
that the deadline imposed by Congress under INA § 254(i)
constitutes a statute of repose, not subject to equitable tolling.
We also find that ineffective assistance of counsel in prepar-
ing and filing a petition does not implicate the Fifth Amend-
ment. Because we find no error in the merits of the BIA’s
decision, we do not discuss the remedies among DHS and
INS that were otherwise available to the BIA.
3
Balam-Chuc does not contest the BIA’s finding that it could not adju-
dicate his application nunc pro tunc.
 BALAM-CHUC v. MUKASEY 14949
A. Statute of Limitations or Statute of Repose

[2] “There is a crucial distinction in the law between ‘stat-
utes of limitations’ and ‘statutes of repose.’ Statutes of repose
are not subject to equitable tolling.” Munoz v. Ashcroft, 339
F.3d 950, 957 (9th Cir. 2003). Whether INA § 245(i) is a stat-
ute of repose or a statute of limitations subject to equitable
tolling is a question of first impression for the federal circuits.
However, we have analyzed a number of other deadlines
imposed by Congress to determine whether or not they consti-
tute statutes of limitation or repose. Compare, Albillo-De
Leon v. Gonzales, 410 F.3d 1090, 1098 (9th Cir. 2005) (find-
ing that § 203(c) of the Nicaraguan Adjustment and Central
American Relief Act (“NACARA”) was a statute of limita-
tions subject to equitable tolling), with Munoz, 339 F.3d at
956-57 (finding that § 203(a) of NACARA was a statute of
repose not subject to equitable tolling), and Carrillo-Gonzalez
v. INS, 353 F.3d 1077, 1079 (9th Cir. 2003) (holding that
equitable tolling did not apply to the congressionally-
mandated, one-year deadline of the Diversity Immigration
Visa Lottery Program for 1997).

“Statutes of limitation are primarily designed to assure fair-
ness to defendants and to promote the theory that even if one
has a just claim it is unjust not to put the adversary on notice
to defend within the period of limitation and that the right to
be free of stale claims in time comes to prevail over the right
to prosecute them.” Albillo-De Leon, 410 F.3d at 1095 (inter-
nal quotations and citations omitted). In essence, “such limita-
tions relieve courts of the burden of adjudicating stale claims
when a plaintiff has slept on his rights.” Id.

[2] On the other hand, a statute of repose is a “fixed, statu-
tory cutoff date, usually independent of any variable, such as
claimant’s awareness of a violation.” Munoz, 339 F.3d at 957.
“A statute of repose cuts off a cause of action at a certain time
irrespective of the time of accrual of the cause of action.”
Weddel v. Sec’y of Health & Human Servs., 100 F.3d 929,
14950 BALAM-CHUC v. MUKASEY
931 (9th Cir. 1996). Perhaps the most distinguishing charac-
teristic 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. Thus,
we have noted that statutes of repose act “ ‘as the endpoint of
the definite time period in which Congress would permit a
specific class of potential annuitants to file applications,’ ”
which function “ ‘as a condition defining and closing the
class.’ ” Id. (quoting Iacono v. Office of Pers. Mgmt., 974
F.2d 1326, 1328 (Fed. Cir. 1992)).

For example, in Munoz we decided that deadlines imposed
by NACARA § 203(a) constitute a statute of repose. 399 F.3d
at 957. That statute imposed an April 1, 1990, cutoff date for
asylum applications from Guatamalan nationals and a Decem-
ber 31, 1991, cutoff date for special rule cancellation applica-
tions from Guatamalan nationals who had registered for
certain settlement benefits. NACARA § 203(a), Pub. L. No.
105-100, 111 Stat. 2160. We held that § 203(a) constituted a
statute of repose because the deadlines at issue were “fixed by
statute and unrelated to any variable” and through the “retro-
active cutoff dates, Congress closed the class via a statute of
repose.” Munoz, 339 F.3d at 957.

[3] As in NACARA § 203(a), here Congress has created a
fixed statutory cutoff date, independent of any variable, and
the deadline effectively closes the class of individuals entitled
to special treatment under a statutory initiative. The statute
requires aliens to file a visa petition “on or before April 30,
2001” to qualify for adjustment of status. INA § 245(i). This
is 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.
Our decision in Munoz compels the conclusion that INA
§ 245(i) is a statute of repose.

Balam-Chuc relies on our decision in Albillo-De Leon v.
Gonzales, 410 F.3d 1090 (9th Cir. 2005), to support his posi-
tion that § 245(i) is a statute of limitations. In Albillo-De
 BALAM-CHUC v. MUKASEY 14951
Leon, we interpreted § 203(c) of NACARA—not to be con-
fused with § 203(a) discussed above—and found that the
deadline constituted a statute of limitations. 410 F.3d at 1098.
Section 203(c) provides a period for aliens to file a motion to
reopen removal or deportation proceedings if they become eli-
gible for relief under NACARA’s other provisions. NACARA
§ 203(c), Pub. L. No. 105-100, 111 Stat. 2160. The statute
provides that “[t]he period shall begin not later than 60 days
after the date of the enactment of [NACARA] and shall
extend for a period not to exceed 240 days,” giving the Attor-
ney General final discretion to fix the date. Id. In Albillo-De
Leon we distinguished Munoz based on a combination of
three unique factors: (1) section 203(c) served a limited pur-
pose and applied to a specific, small group of people that had
already complied with the deadlines imposed by § 203(a), (2)
the time deadline did not “identify a specific cutoff date by
which a petitioner must file his or her motion to reopen pro-
ceedings,” and (3) the legislative history specifically indicated
an intent to subject the soft deadline to equitable tolling prin-
ciples. 410 F.3d at 1097-98.

None of these three circumstances is present here. Rather,
§ 245(i) applies to all aliens who filed a visa petition before
April 30, 2001, and were present in the United States on the
statute’s date of enactment. This can hardly be characterized
as a statutory provision with a “limited purpose” that applies
to a specific, small group of people. See Albillo De-Leon, 410
F.3d at 1097. Unlike NACARA § 203(a), which did not
impose a specific cutoff date, INA § 245(i) requires all aliens
who wish to apply for an adjustment of status to submit a visa
petition by a hard deadline—April 30, 2001. Finally, there is
no indication in the legislative history that Congress specifi-
cally intended the courts to apply tolling principles to
§ 245(i). Rather, the legislative history appears to recommend
that the agencies responsible for enforcing the statute should
accept petitions filed after the deadline in the exercise of their
executive discretion. See 146 CONG. REC. S11851 (Dec. 15,
2000) (statement of Sen. Kennedy). A brief reference in the
14952 BALAM-CHUC v. MUKASEY
legislative history recommending agency discretion does not
give this court authority to construe a strict cutoff deadline as
a statute of limitations. Thus, Albillo-De Leon does not apply
here, and we are bound by our decision in Munoz.

B. Due Process Right to Effective Assistance of Counsel

[4] Balam-Chuc also argues that his counsel’s ineffective
assistance in preparing and filing his visa petition constitutes
a deprivation of due process. “Ineffective assistance of coun-
sel in a deportation proceeding is a denial of due process
under the Fifth Amendment if the proceeding was so funda-
mentally unfair that the alien was prevented from reasonably
presenting his case.” Lopez v. INS, 775 F.2d 1015, 1017 (9th
Cir. 1985).

[5] However, we have established that due process rights to
assistance of counsel do not extend beyond the fairness of the
hearing itself. Lara-Torres v. Ashcroft, 383 F.3d 968, 973-76
(9th Cir. 2004). For example, in Lara-Torres, the petitioners
faced removal because their attorney had taken an erroneous
legal strategy and given faulty legal advice. Id. at 973. The
petitioners brought a challenge based on ineffective assistance
and a violation of due process. Id. We dismissed the petition
because

[n]one of [Petitioner’s] purported deficiencies per-
tain to the actual substance of the hearing (e.g., evi-
dence presented or omitted, arguments raised or
overlooked), let alone call the hearing’s fairness into
question. The basic “unfairness” of which the Peti-
tioners complain is that they never would have been
subject to removal proceedings had it not been for
their reliance on [their lawyer’s] unfortunate
immigration-law advice. This “unfairness,” however,
did not taint the “fairness” of the hearing.
 BALAM-CHUC v. MUKASEY 14953
Id. at 973. Indeed, in order to find ineffective assistance of
counsel in this context we held that the legal services must be
rendered “while proceedings were ongoing.” Id. at 974.

[6] Here, Balam-Chuc’s attorney failed to properly file a
visa petition within the statutorily required deadline. This
deficiency does not relate to the substance of an ongoing hear-
ing; in fact, no proceedings had begun at the time the alleged
attorney misconduct took place. Thus, as in Lara-Torres, we
reject Balam-Chuc’s attempt “to cast such an expansive and
amorphous Fifth Amendment due process right that encom-
passes legal assistance removed from the actual process
itself.” Id. at 975. Although the failings of Balam-Chuc’s
attorney in this case have resulted in terrible consequences for
him and his family, the Fifth Amendment simply does not
apply to the preparation and filing of a petition that does not
relate to the fundamental fairness of an ongoing proceeding.

III. CONCLUSION

Balam-Chuc filed a petition for an immigrant visa after
April 30, 2001, the deadline imposed by Congress to receive
an adjustment of status under the LIFE Act amendments. The
BIA properly concluded that the deadline imposed by Con-
gress operates as a statute of repose, for which equitable toll-
ing based on ineffective assistance of counsel is not available.
In addition, the failure of Balam-Chuc’s counsel to comply
with the statutory filing requirements did not implicate the
Fifth Amendment because they did not affect the fundamental
fairness of any ongoing hearing. Balam-Chuc has no remedy
in this court.

We recognize that this is a tragic result for Balam-Chuc and
his family. We echo our observations from Munoz, where a
statute of repose forced the petitioner to return to his country
of origin to obtain a visa.

We deny [the] petition because that is the proper
conclusion under the statute and relevant precedent.
14954 BALAM-CHUC v. MUKASEY
But the result . . . appears pointless and unjust. . . .
We are unable to grant [the] petition, but we hope
that appropriate officials within the executive
branch, or possibly Congress, will take a careful look
at this case and, if the facts are truly as they appear
to us, consider whether removal of [the petitioner] is
really the just and proper result here.

339 F.3d at 958-59.

Similarly, as a result of the statute and relevant precedent
in this case, Balam-Chuc will be forced to leave his wife and
two young children to return to Mexico, where he must start
the process of applying for a visa through the Mexican con-
sulate, all because his attorney failed to take appropriate
action in filing his application with the INA. It seems espe-
cially counterintuitive that DHS would insist on bringing
charges against Balam-Chuc when Congress’s specific direc-
tive in passing the statute was to encourage agencies to allow
these very families to stay together. We hope that DHS will
look past any technical flaws in Balam-Chuc’s application
and follow Congress’s guidance to exercise its discretion in
an equitable manner. However, it is not within our prerogative
to ignore our prior precedent, unilaterally amend a statute
duly passed by the legislative branch, or interfere with the
legitimate exercise of executive discretionary power, even to
provide Balam-Chuc with an avenue for remaining with his
family.

Despite the apparent equities weighing to the contrary, the
petition for review must be DENIED.