The opinion of the court was delivered by: William H. Walls, U.S.D.J.
Respondents oppose petitioner's motion for attorneys' fees and costs under the Equal Access to Justice Act, 28 U.S.C. § 2412. Petitioner Hany Kiareldeen seeks an award of $110,743.06. The petitioner's request for costs and attorneys' fees is granted.
On October 20, 1999, after petitioner, a resident alien, had been held in custody for 19 months by the Immigration and Naturalization Service (INS), this court issued a writ of habeas corpus directing the agency to immediately release the petitioner. Kiareldeen v. Reno, 71 F. Supp. 2d 402 (D.N.J. October 20, 1999), motion to vacate denied and appeal dismissed as moot, C.A. No. 99-5851 (3rd Cir. March 2, 2000) (order). The court's decision was based on two alternative constitutional grounds: first, the evident due process concerns inherent in the government's use of secret evidence submitted ex parte and in camera to detain petitioner, and second, the constitutional infirmity of the government's reliance on uncorroborated hearsay documents to support the detention.
In that opinion, the court rejected contentions by the government that: 1) this court had been stripped of jurisdiction to consider the habeas petition by the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) and the Antiterrorism and Effective Death Penalty Act (AEDPA); 2) the petitioner, who had entered this country legally in 1990, was entitled to no due process rights; and 3) the decisions of Jay v. Boyd, 351 U.S. 345 (1956), and Barbour v. District Director, 491 F.2d 573 (5th Cir. 1974), established the constitutionality of the use of secret evidence.
Kiareldeen's pre-petition efforts to challenge his detention had been repeatedly spurned by the respondents. In April 1999, he secured favorable rulings from an Immigration Judge, who granted Kiareldeen's request for adjustment of status and authorized his release on bond. That judge, who had reviewed first-hand the government's evidence, concluded: "An evaluation of the evidence by a person of ordinary prudence and caution cannot sustain a finding that this [Kiareldeen] has engaged in terrorist activity." That same day, the government successfully applied to the Board of Immigration Appeals for an emergency stay of the Immigration Judge's orders pending appeal.
On October 15, 1999, the Board of Immigration Appeals dismissed the INS' appeal of the adjustment of status issue, but stayed its decision until October 29, 1999; and on October 20, 1999, the Board dismissed the agency's appeal and stay of the release order.
On October 20, 1999, by opinion, this court granted the habeas writ to the resident alien. Again the government applied for an immediate stay, which a Third Circuit Judge granted temporarily and referred to a motions panel for final determination. *fn1 The government appealed to the Circuit Court from this court's opinion. On October 25, 1999, when the INS chose not to pursue a final administrative appeal by requesting certification by Attorney General Janet Reno, the petitioner was released from custody.
The government moved to vacate this court's opinion as moot. On March 2, 2000, a Third Circuit panel denied the motion to vacate this court's opinion and dismissed the government's appeal as moot.
The Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), provides: Except as otherwise provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs . . . incurred by that party in any civil action . . . including proceedings for judicial review of agency action, brought by or against the United States . . . unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.
The "position of the United States" includes, "in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based." 28 U.S.C. § 2412(d)(2)(D).
The government bears the burden to show that its positions were substantially justified, both before and during litigation, by: 1) a reasonable basis in truth for the facts alleged; 2) a reasonable basis in law for the theory it propounds; and 3) a reasonable connection between the facts alleged and ...