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Gjergj G. v. Edwards

United States District Court, D. New Jersey

July 17, 2019

GJERGJ G., Petitioner,
v.
RONALD P. EDWARDS, et al., Respondents.

          OPINION

          Hon. Susan D. Wigenton, United States District Judge.

         Presently 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.

         I. BACKGROUND

         As this 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 immigration judge.

(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. 15).

         II. DISCUSSION

         Petitioner 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.

         As the 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 Cir. 2012).

         In this 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., ...


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