Argued: December 10, 2014.
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.
Before DUNCAN, AGEE, and HARRIS, Circuit Judges. Judge Harris wrote the opinion, in which Judge Duncanand Judge Agee joined.
On Petition for Review of an Order of the Board of Immigration Appeals.
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.
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 ...