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Johnson v. Gonzales

July 25, 2005

JIMMY JOHNSON, PETITIONER
v.
ALBERTO R. GONZALES*FN1, ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENT



The opinion of the court was delivered by: Ambro, Circuit Judge

PRECEDENTIAL

On Motion for Attorneys' Fees

Argued October 28, 2004

Before: NYGAARD, AMBRO, and GARTH, Circuit Judges

OPINION OF THE COURT

Jimmy Johnson moves for attorneys' fees pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d)(1)(A). For the reasons that follow, we grant his motion.

I. Background

Johnson petitioned our Court for review of the decision of the Board of Immigration Appeals ("BIA") denying his asylum application. Johnson is a native of Liberia who fled that country after being forcibly recruited into and then deserting the army of the National Patriotic Front of Liberia ("NPFL")-a group associated with Charles Taylor, who later became the President of Liberia (and subsequently abdicated that position). The BIA determined that Johnson "ha[d] failed to show that he was persecuted on account of his political opinion, and that his 'persecution' was not solely the result of the guerillas' aim in seeking to fill their ranks in order to carry out the war with the government and pursue their political goal, their political motive being irrelevant."

We granted Johnson's petition for review, holding that the BIA's decision was not supported by substantial evidence when it failed even to consider Johnson's testimony from his second asylum hearing (which the Immigration Judge ("IJ") determined credible in a finding not disturbed by the BIA) in reviewing the IJ's decision resulting from that hearing.*fn2 See Johnson v. Ashcroft, No. 03--1931, 2004 WL 2966435, at *3 (3d Cir. Dec. 23, 2004).*fn3

Johnson's motion for attorneys' fees relating to his petition for review is now before us.

II. Jurisdiction

Under the EAJA, a motion for attorneys' fees must be filed "within thirty days of final judgment in the action." 28 U.S.C. § 2412(d)(1)(B). In this context, "'final judgment' means a judgment that is final and not appealable . . . ." 28 U.S.C. § 2412(d)(2)(B). We have held that "the thirty day cutoff for EAJA petitions begins when the government's right to appeal the order has lapsed." Taylor v. United States, 749 F.2d 171, 174 (3d Cir. 1984) (per curiam).

The Government's time to petition for a writ of certiorari in this case expired on March 22, 2005. Johnson, however, filed his motion on March 18, 2005. This technicality need not concern us, as we have noted that "[t]he EAJA establishes only a deadline after which . . . petitions may not be filed; earlier filing is possible." Id. at 175 n.8. Johnson's motion ...


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