Metropolitan News-Enterprise


Monday, October 27, 2008


Page 1


Alien’s Removal Upheld Despite Counsel’s Alleged Misconduct


By STEVEN M. ELLIS, Staff Writer


A Mexican man who blamed his lawyer for missing the filing deadline under a program for spouses of citizens to remain in the United States while seeking a visa must leave his family and apply for a new visa abroad, the Ninth U.S. Circuit Court of Appeals ruled Friday.

Recognizing the result as “tragic” for Jose Eulalio Balam-Chuc and his family, Judge Jay S. Bybee wrote that the court had no choice but to conclude that the April 30, 2001 application deadline under the Legal Immigration Family Equity Act was not subject to equitable tolling for alleged attorney misconduct because it was a statute of repose, not a statute of limitation.

Balam-Chuc entered the United States without inspection in 1997, and was married to a U.S. citizen three years later in Tacoma, Wash. In 2001, prior to the birth of the couple’s two children, currently ages six and three, his wife hired the DeDamm Law Firm in Bellevue, Wash. to file a family visa petition and application for adjustment of status on his behalf under the Legal Immigration Family Equity Act.

Enacted by Congress in 1999, in part, to provide a speedy mechanism for spouses and minor children of U.S. citizens to obtain immigrant visas in the United States rather than wait for long periods of time outside the country, the act allowed aliens who had entered the country illegally, but who were otherwise eligible for a visa, to apply for an adjustment of status and remain in the country while their visa application was pending.

Congress amended the act in 2000 to extend its filing deadline to April 30, 2001, and Balam-Chuc’s wife said she was assured by the firm one month prior to the deadline that her husband’s petition would be hand-delivered on time.

The government, however, did not receive the petition until almost a month and a half after the deadline, which Balam-Chuc did not learn for another year until he appeared for his adjustment interview in July of 2002.

Balam-Chuc turned to the law firm, but no one could provide proof the petition had been submitted prior to the deadline. Although the firm claimed the application had been timely submitted, a representative acknowledged it might have been returned for lack of the appropriate filing fee, and Balam-Chuc’s application was denied.

Equitable Tolling Argued

After the Department of Homeland Security began removal proceedings against Balam-Chuc, he contended that he should be eligible for an adjustment of status because he had filed his petition on time and, alternatively, that the statute of limitations should have been tolled due to ineffective assistance of counsel.

But an immigration judge found—and the Board of Immigration Appeals agreed—that Balam-Chuc was removable because he had failed to establish he had timely filed the application and filing fee, and because the statute establishing the deadline was a statute of repose, and therefore not subject to equitable tolling.

On appeal, Balam-Chuc renewed his argument that the deadline should have been tolled, and contended that the ineffective assistance of counsel violated his due process rights under the Fifth Amendment, but Bybee rejected both claims.

Statute of Repose

Explaining that statutes of limitations are primarily designed to assure fairness to defendants and the right to eventually be free of stale claims, while statutes of repose cut off causes of action at a certain time irrespective of when they accrued, Bybee wrote that the deadline was of the latter because it set forth “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.”

The judge similarly swept aside the due process argument, opining that Balam-Chuc failed to show that the proceedings were so fundamentally unfair that they prevented him from reasonably presenting his case in that no proceedings had actually begun when the alleged misconduct occurred.

Nevertheless, Bybee wrote in conclusion that the court was not unsympathetic to Balam-Chuc’s plight.

“[A]s 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 consulate, all because his attorney failed to take appropriate action in filing his application with the INA…,” he said.

“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.”

Judges Thomas G. Nelson and Michael Daly Hawkins joined Bybee in his opinion.

The case is Balam-Chuc v. Mukasey, 06-72887.


Copyright 2008, Metropolitan News Company