UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS
March 8, 2011
NIMELY P. GEEGBAE, PETITIONER,
JOSEPH D. MCDONALD, JR., RESPONDENT.
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
A. The EAJA Standard
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 the government's position was not
substantially justified, but a string of court decisions going either
way can be indicative."*fn20
Here, Petitioner is a prevailing party. Moreover, the government has failed to show that its position was substantially justified. First, Petitioner is a prevailing party because, on November 1, 2010, this court allowed his Petition for Writ of Habeas Corpus and ordered his release.*fn21
Second, for its position to be substantially justified, the government must show that it was reasonable in law and in fact for ICE to detain Petitioner during the nineteen months prior to this court's order. The government must also show that it was reasonable to argue to this court that Petitioner's removal was reasonably foreseeable. Neither position was substantially justified by the government.
The pre-litigation position of ICE was not substantially justified. As this court explained in its November 2010 Memorandum, if Petitioner's removal had been reasonably foreseeable, Supreme Court precedent imposed a six-month limit on detention.*fn22 Petitioner's nineteen-month detention violated that limit. Moreover, this court held that Petitioner's removal was not reasonably foreseeable.*fn23
The government's litigation position was not substantially justified, either. First, the government did not address the serious constitutional concerns raised when detention exceeds the time reasonably necessary to complete removal proceedings. The Supreme Court first raised such concerns in 2003, and many lower federal courts have since expanded on those concerns.*fn24
Second, the government did not address any of this district's recent decisions*fn25 that discuss precisely this issue.*fn26 Third, as this court explained in its prior Memorandum, Petitioner's removal was not reasonably foreseeable.*fn27
B. Calculation of Fees
The EAJA provides that "attorney fees shall not be awarded in excess of $125 per hour unless the court determines that an increase in the cost of living . . . justifies a higher fee."*fn28 Here, Petitioner seeks $9003.75 in attorney fees. This figure is based on an hourly rate of $175.*fn29
Petitioner reaches this rate by adjusting the statutory rate of $125 for the increase in standard of living since 1996, the date of the EAJA.*fn30 Petitioner also seeks $5 in costs.
Because Petitioner is entitled to the cost-of-living adjustment, this court hereby awards Petitioner attorney fees and costs in the amount of $9008.75.
For the foregoing reasons, Petitioner's Motion for Attorney Fees and Costs Under the Equal Access to Justice Act [#16] is ALLOWED. AN ORDER HAS ISSUED.
Joseph L. Tauro United States District Judge