Wednesday, October 21, 2009

Attorneys' fees and costs, Equal Access to Justice Act, EAJA

Potdar v. Holder, No. 06-2441 (10/21/09) Attorneys' fees and costs, Equal Access to Justice Act, EAJA.

Potdar v. Holder (Ripple)
Oral Argument | Full Text

Petitioner's motion for attorneys' fees and costs, arising from exclusion proceedings, is denied as, under the Equal Access to Justice Act, 28 U.S.C. section 2412, the government's position was justified in substance or in the main.

Petitioners in immigration cases are eligible for attorneys’ fees under the Equal Access to Justice Act, 28 U.S.C. § 2412 (“EAJA”). To be eligible for an award of fees, “a petitioner must show that: (1) he was a prevailing party; (2) the Government’s position was not substantially justified; (3) there existed no special circumstances that would make an award unjust; and (4) he filed a timely and complete application for fees.” Kholyavskiy v. Holder, 561 F.3d 689, 690 (7th Cir. 2009). To be substantially justified, the Government’s position must be “justified in substance or in the main” or “justified to a degree that could satisfy a reasonable person.” The Government meets this burden if: “(1) it had a reasonable basis in truth for the facts alleged, (2) it had a reasonable basis in law for the theory propounded, and (3) there was a reasonable connection between the facts alleged and the theory propounded.” Kholyavskiy, 561 F.3d at 691 (citing Conrad v. Barnhart, 434 F.3d 987, 990 (7th Cir. 2006)). The “EAJA is not an automatic fee-shifting statute in favor of litigants who prevail against the government,” Zapon v. United States Dep’t of Justice, 53 F.3d 283, 284 (9th Cir. 1995); “[t]he outcome of a case is not conclusive evidence of the justification for the government’s position,” United States v. Hallmark Const. Co., 200 F.3d 1076, 1079 (7th Cir.2000). More specific to the immigration context, a determination that part of the BIA’s decision was not supported “by substantial evidence does not foreclose the possibility that the position was substantially justified.” Howard v. Barnhart, 376 F.3d 551, 554 (6th Cir. 2004). Rather, we must consider “the factual and legal support for the government’s position throughout the entire proceeding.” Hallmark Constr. Co., 200 F.3d at 1080.

Labels: , , , ,

Tuesday, October 6, 2009

exclusionary rule does not apply in removal proceedings

Krasilych v. Holder, No. 09-1026 (9/29/09) exclusionary rule, Ukrainian withholding of removal

Krasilych v. Holder (Per Curiam)
Oral Argument | Full Text

Petition for review of the BIA's denial of a Ukrainian citizen's application for withholding of removal is denied as the exclusionary rule generally does not apply in removal proceedings, and here, petitioner obtained the I-551 stamp on his passport during an undercover investigation coordinated by immigration authorities.

Labels: , ,