United States District Court, D. New Jersey
Susan D. Wigenton, United States District Judge.
before the Court is the motion of Petitioner, Gjergj G.,
seeking attorney's fees pursuant to the Equal Access to
Justice Act, 28 U.S.C. § 2412(d)(1)(A). (ECF No. 15).
The Government filed a response to the motion (ECF No. 20),
to which Petitioner has replied (ECF No. 21). For the
following reasons, this Court will deny the motion.
Court previously explained,
Petitioner is a native and citizen of Albania who entered
this country in September 2017 via the Visa Waiver Program
using a forged Hungarian passport. Petitioner was initially
given permission to remain in the United States until
December 19, 2017. Petitioner remained in the United States
beyond December 2017, and was arrested and taken into
immigration custody on August 1, 2018. Petitioner has
remained in custody without a bond hearing since that time
while he has litigated his applications for asylum before an
(ECF No. 12 at 1). Petitioner therefore filed a habeas
petition in this matter challenging his ongoing detention
without a bond hearing, which the Government contended arose
out of the Visa Waiver Program statute itself, 8 U.S.C.
§ 1187, relying upon the Board of Immigration
Appeals' decision in Matter of A.W., 25 I&N
Dec. 45 (BIA 2009). (See ECF No. 12 at 2-5). This
Court ultimately granted that petition, finding, contrary to
A.W. and in accordance with this Court's prior
decision in Szentkiralyi v. Ahrendt, No. 17-1889,
2017 WL 3477739, at *2 (D.N.J. Aug. 14, 2017), that the Visa
Waiver statute did not contain a detention provision, and
Petitioner's detention should instead be construed to
arise out of 8 U.S.C. § 1226(a). (ECF No. 12 at 2-5).
This Court therefore granted Petitioner a bond hearing. (ECF
No. 13). Petitioner thereafter filed his current motion
seeking several thousand dollars of attorney's fees
pursuant to the Equal Access to Justice Act (EAJA). (ECF No.
seeks an award of attorney's fees pursuant to the EAJA,
28 U.S.C. § 2412(d)(1)(A). Pursuant to that statute,
[e]xcept as otherwise specifically provided by statute, a
court shall award to a prevailing party other than the United
States fees and other expenses . . . incurred by that party
in any civil action (other than cases sounding in tort),
including proceedings for judicial review of agency action,
brought by or against the United States in any court having
jurisdiction of that action, unless the court finds that the
position of the United States was substantially justified or
that special circumstances make an award unjust.
28 U.S.C. § 2412(d)(1)(A). Although the parties appear
to agree that Petitioner is a prevailing party in this matter
and that the EAJA would otherwise apply, the Government
argues that it was “substantially justified” in
its position in this matter, and that an award of fees under
the statute is therefore not warranted.
Third Circuit has explained,
[t]he Supreme Court has held that, as used in the EAJA,
“substantially justified” does not mean
“justified to a high degree” but instead means
“justified in substance or in the main - that is,
justified to a degree that could satisfy a reasonable
person.” Pierce v. Underwood, 487 U.S. 552,
565 (1988). Put another way, substantially justified means
having a “reasonable basis in both laws and
fact.” [Id.] Thus, “[a] court must not
assume that the government's position was not
substantially justified simply because the government lost on
the merits.” Kiareldeen v. Ashcroft, 273 F.3d
542, 554 (3d Cir. 2001).
Johnson v. Gonzales, 416 F.3d 205, 210 (3d Cir.
2005). In litigation arising out of immigration and removal
proceedings, the government must be substantially justified
in both the position taken by the agency prior to the
litigation, and in the position it takes in litigation before
the court. Id. Although a single court decision is
not itself proof positive of substantial justification, that
the Government's position has produced favorable
decisions by other federal courts and administrative courts
is an “objective indicia” of substantial
justification. Pierce, 487 U.S. at 568-69; Bryan
v. Comm'r of Soc. Sec., 478 Fed.Appx. 747, 750 (3d
matter, the Court finds that the Government's
pre-litigation conduct of holding Petitioner without bond was
substantially justified as the Government did no more than
follow binding administrative decisions - specifically
A.W. - in holding Petitioner without a bond hearing.
Indeed, absent a bond order from this Court and in light of
A.W., the Government likely could not have done
otherwise as the immigration courts have effectively ruled
that neither the BIA nor the immigration judge's have
authority to hold a bond hearing for Visa Waiver Program
violators. See A.W., ...