EAJA fees available in immigration habeas petitions & petitions for review

The Second Circuit ruled on April 18, 2005 in Vacchio v. Ashcroft that Equal Access to Justice Act fees are available in immigration habeas petitions.

To require the government to pay your attorney's fees, you must show that you filed a civil action and you were the prevailing party. You will not be paid, though, if the government can prove that its position was substantially justified.

Regarding only the first requirement, the Second Circuit made a new ruling that an immigration habeas corpus petition is a civil action for the purpose of EAJA and therefore can be eligible for the award of attorney's fees. The government (DHS or ICE) had argued that it was not a civil action, but the Second Circuit rejected the government's position.

By the way, the immigrant's attorneys lost their EAJA request because they did show that the immigration habeas was a civil action and that they were the prevailing party by getting the immigrant out of detention, but the Second Circuit (in a split 2-1 decision) ruled that the government's position was substantially justified, for complicated reasons that I won't get into here.

Addition: Using the same logic, the Ninth Circuit also held in November 2005 that a victory in a petition for review to the circuit court can also qualify for EAJA fees. Obtaining a remand back to the BIA is a victory. And when the circuit court's decision concluded that the government's challenged ruling lacked a substantial basis, it was clear that the government could not avoid EAJA fees by arguing that its position was substantially justified. The Ninth Circuit refused to award enhanced fee rates and at the statutory rate ($144/hour in 2002 and $152/hour in 2004), the 64 hours of work were compensated at $9,600 plus $408 in costs. See Thangaraja v. Gonzales, No. 02-73970 (9th Cir. Nov. 3, 2005).

The Ninth Circuit explained why obtaining a remand to the BIA is a victory in Rueda Menicucci v. INS, No. 95-70281 (9th Cir. Dec. 22, 1997) (awarding around $10,000 for 77 hours at $129 per hour); Gwaduri v. INS, No. 02-70629 (9th Cir. Mar. 18, 2004) (awarding $6,750).

Looks like petitions for review often take 65-85 hours of work. EAJA fees also granted at the statutory rate in the Third Circuit in Johnson v. Gonzales, No. 03-1931 (3d Cir. July 25, 2005) (82 hours of work plus $550 in costs yields around a $10,800 award).

Motion to Suppress using New Jersey Constitution

A groundbreaking area of immigration law is making motions to suppress evidence that was unlawfully obtained. An area with enormous potential is using the state constitution (such as the New Jersey Constitution) as a ground for demanding that evidence be suppressed.

Suppressing evidence is a court-created remedy for the unlawful actions of police to conduct an illegal search. The danger of widespread illegal searches is so great that courts have created a penalty in many situations that police cannot use the illegally obtained evidence in the case.

As a practical tip, make sure that you do not concede the facts that you want to dispute. This is an easy position to take in theory, but it requires skill and strength to follow through on this position in immigration court in many places. This is because in some courts, immigration lawyers virtually always concede the facts. Make sure that if you are trying to suppress evidence, you absolutely never concede the facts in question. (Note, you can refuse to concede the facts even if the fact is true -- for example, if you drove a green car on Sunday night, you can ask the court to require that the government prove that fact even if you know it is true that you drove a green car that night. I am not suggesting that you lie by saying a falsehood -- instead, you should refuse to concede the issue and ask that the government prove its case.)

This blog entry focuses on using the New Jersey Constitution. Using the Constitution of a state is a well-established legal theory that is rarely invoked in immigration court. Immigration lawyers should be considering it more often. Under the United States system of government, the United States Constitution sets the minimum level of protective rights that all people must be given. Nothing prohibits a particular state such as New Jersey to grant additional rights in the New Jersey Constitution. You need to review the state Constitution and court decisions analyzing the state Constitution, even if at first glance the wording in the US constitution and the state constitution seem similar.

There is a series of New Jersey court decisions that reach the conclusion that the New Jersey Constitution grants greater protections against unlawful searches and seizures than is granted under the US Constitution. So, raise the New Jersey Constitution when you make a motion to suppress in immigration court. This is a tactic that we have been preparing, researching, and doing.

Here is just one example of how it can be crucial: under the US Constitution, people are only allowed to raise an objection to Fourth Amendment violations such as an unlawful search if their privacy interest was violated. They can't object to a search that violated the rights of someone else's privacy rights. But this restriction does not exist under the New Jersey Constitution's article I section 7 protection against unlawful searches.

So, if a police officer conducts an unlawful search of your friend and illegally gets the friend to provide information about your immigration status, you might lose your motion to suppress under the US Constitution, but it's much easier to make the same motion to suppress under the NJ Constitution.

This is extremely complex and there are many areas I have not covered, so please consult an attorney with your particular situation before proceeding with this difficult area of law. It may be worth it if, for example, the result is that the government is forbidden from using their evidence and the immigration judge dismisses the case.