The opinion of the court was delivered by: Tauro, J.
In November 2010, this court held that the prolonged detention of Petitioner NimelyGeegbae was unconstitutional and, for that reason, allowed Petitioner's Petition for Writ of Habeas Corpus. Presently at issue is Petitioner's Motion for Attorney Fees and Costs Under the Equal Access to Justice Act [#16]. For the following reasons, Petitioner's Motion is ALLOWED.
Petitioner, a refugee from Liberia, legally entered the United States in 2004.*fn2 In 2009,Petitioner was convicted of simple assault and sentenced to sixty days in jail.*fn3 At the end of those sixty days, Petitioner was transferred to the custody of U.S. Immigration and Customs Enforcement ("ICE")*fn4 and charged with removability.*fn5 Petitioner applied for adjustment of status under 8 U.S.C. § 1159(a), in conjunction with a waiver of inadmissibility under 8 U.S.C. § 1159(c).*fn6
On December 7, 2009, an Immigration Judge granted Petitioner's application for adjustment of status and a waiver of inadmissibility, finding that Petitioner had demonstrated rehabilitation and strong family and community support, and that "he would suffer exceptional and extremely unusual hardship" if he were separated from his family and returned to Liberia.*fn7
Subsequent to the Immigration Judge's decision, however, Petitioner was not released from custody. On January 14, 2010, the Department of Homeland Security appealed the Immigration Judge's order to the Board of Immigration Appeals ("BIA").*fn8
On May 19, 2010, Petitioner filed a Petition for Writ of Habeas Corpus in this court.*fn9 On November 1, 2010, this court issued a Memorandum and Order allowing Petitioner's Petition.*fn10
Petitioner remained in immigration detention from April 1, 2009*fn11 until this court allowed his Petition for Writ of Habeas Corpus, a total of at least nineteen months.
Petitioner now seeks $9003.75 in attorney fees and $5 in costs under the Equal Access to Justice Act ("EAJA").*fn12
Absent special circumstances, a party may recover attorney fees under
the EAJA if (1) the party is a "prevailing party" and (2) the position
of the government "was not substantially justified."*fn13
The prevailing party standard requires (1) a "'material
alteration of the legal relationship of the parties" and (2) "judicial
imprimatur on the change."*fn14 As this court has
previously determined, a party who has successfully petitioned for a
writ of habeas corpus is a "prevailing party."*fn15
To prove that the position of the government was substantially
justified, the government must show*fn16 that its
position had a "'reasonable basis in both law and fact.'"*fn17
To do so, the government must demonstrate that both its pre-litigation and
litigation positions were substantially justified.*fn18
The phrase "substantially justified" means more than "merely
undeserving of sanctions for frivolousness."*fn19 For
instance, "[w]hether one court agreed or disagreed with the government
does not establish that ...